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Sivoi v State [1997] FJHC 109; HAA0041D.1997S (8 August 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 41 OF 1997

Between:

ERONI SIVOI and FILIPE QALI
Appellants

And:

THE STATE
Respondent

Counsel: First Appellant in person
Mr. Veretawatini for Second Appellant
Mr. Bhindi for Respondent

Hearing: 8th August 1997

Decision: 8th August 1997

ORAL DECISION OF PAIN J.

This is an appeal against sentence.

On the 11th February 1997 both Appellants pleaded guilty in the Magistrates Court to a charge under s.277 of the Penal Code of stealing 5 ducks valued at $90. Following their pleas of guilty the learned Magistrate heard the facts from the prosecution and mitigation from both Accused. He then sentenced the Appellants making the following observation: "Sentenced to 3 months imprisonment each. Offence quite prevalent in Nakasi area. Sentence passed as a deterrent measure."

It is submitted on behalf of both Appellants that this sentence of 3 months imprisonment is excessive for these first offenders for this particular offence. Counsel for the Respondent has outlined all matters that could support the sentence imposed. He has also properly acknowledged the mitigating factors that are present in this case.

The two Appellants were aged 17 and 22 years. They were first offenders. They were sentenced to imprisonment.

It is a well recognised principle of sentencing that the sentencing of first offenders, particularly young first offenders, to imprisonment should be avoided. It will normally only be done when no other method of dealing with the offender is appropriate. For instance, imprisonment may be inevitable because of the gravity of the offence committed. When the offence is of minimal or moderate seriousness there would need to be other exceptional circumstances to justify a sentence of imprisonment.

In this case the offence cannot be regarded as serious criminal conduct. In the early hours of the morning the Appellants stole 5 ducks from the property of a Nakasi resident. The ducks were valued at $90 which would be $18 for each duck. Certainly, such birds are an important food source and according to the Magistrate such stealing is prevalent in the area. Nevertheless, the offenders must be punished for the actual offence committed which, on the criminal calendar, could not be regarded as a serious offence of dishonesty warranting a substantial penalty.

There are substantial mitigating circumstances. I repeat that these are both young people. At the time of sentence one was aged 17 years and the other 22 years. They are both first offenders. They both pleaded guilty to the charge at the first opportunity. The stolen ducks were recovered and no loss was suffered by the complainant.

An immediate prison sentence is not appropriate for these young first offenders who have pleaded guilty to theft of items that do not have a substantial value. Such a sentence of imprisonment is manifestly harsh and excessive. A non custodial sentence should have been imposed.

Both Appellants spent six days in gaol between the date of sentence and the date they were granted bail pending the appeal. That will have been a salutary lesson for them and is in itself a very meaningful penalty for these offenders.

In my view for the reasons mentioned by the learned Magistrate a discharge would not be appropriate. There ought to be a conviction and a non custodial sentence imposed.

Having regard to all the factors I have mentioned, I will impose a fine of $40 in substitution for the sentence of imprisonment. I will also give Appellants one month in which to pay that fine.

Accordingly, I make the following orders:

1. The appeal by both Appellants against sentence is allowed.

2. The sentence of 3 months imprisonment imposed on each Appellant in the Magistrates Court is quashed.

3. In substitution each Appellant, having been convicted, is fined the sum of $40. Each Appellant is given 1 month to pay that fine in default 21 days imprisonment.

Justice D.B. Pain