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Laoere v The State [1997] FJHC 223; Haa0031.1997s (31 July 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEALS NOS. 31, 32, 33, 34 AND 61 OF 1997

Between

MANOA LAOERE
Appellant

And

THE STATE
Respondent

Counsel: Appellant in person
Mr. W. Clarke for The State

Hearing: 20, 25 & 27th June and 31st July 1997
Decision: 31st July 1997

ORAL DECISION OF PAIN J.

This is an appeal against six sentences of imprisonment which total six years and were imposed on the Appellant in the Magistrates Court on two separate days.

On the 16th August 1996 the Appellant appeared before the Magistrates Court in respect of 4 separate cases involving 5 charges. These cases were heard one after the other on that day and the Appellant received separate sentences on each charge.

Details of these cases are:

1. Magistrates Court Case No. 572/96 (Appeal 32 of 1997). This was a charge of burglary and larceny. On 26th of July 1996 the Appellant broke into the Student Nurses' quarters at a hospital and stole a radio cassette valued at $250. The radio cassette was recovered. The Appellant pleaded guilty. The learned Magistrate said that the Appellant had shown remorse and should be given another chance. He imposed a sentence of 18 months imprisonment, suspended for 2 years.

2. Magistrates Court Case No. 573/96 (Appeal 33 of 1997). This was a charge of shed breaking, entering and larceny. On the 3rd August 1996 the Appellant broke into a tool shed and stole tools valued at $6,655. All this property was recovered. A co-offender was involved in this offence also. The Appellant pleaded guilty. The learned Magistrate said that the offence warranted a custodial sentence because of the nature and circumstances in which the crime was carried out. A sentence of 18 months imprisonment was imposed.

3. Magistrates Court Case No. 574/96 (Appeal 31 of 1997). This was a charge of house breaking, entering and larceny. On the 9th August 1996 the Appellant broke into a house when the occupants were absent and stole cash of $45. The Appellant pleaded guilty. No sentencing remarks are included in the record of the Magistrates Court. The learned Magistrate sentenced the Appellant to 18 months imprisonment, consecutive to the term of 18 months imposed in case No. 573/96.

4. Magistrates Court Case No. 575/96 (Appeal 34 of 1997). This charge contained two counts. First a count of school breaking, entering and larceny. On the 9th August 1996 the Appellant broke into a school and stole a watch and pump valued at $60. The second count was a charge of larceny of vegetables. On the 10th August 1996 the Appellant went to the school farm and stole vegetables to the value of $40. The Appellant pleaded guilty to both charges. There are no sentencing remarks in the Court record. The learned Magistrate sentenced the Appellant to 12 months imprisonment on each count, those terms to run concurrently. However, that sentence of 12 months imprisonment was ordered to be consecutive to the sentences of 18 months imprisonment in each of the Magistrates Court cases 573/96 and 574/96.

The procedure adopted for hearing these cases and imposing sentence is not satisfactory. The four cases should not have been heard separately on the 16th August 1996. They should have been heard together and a sentence imposed that was appropriate for the totality of all the offending. The piecemeal sentencing resulted in an unfortunate mix of prison sentences and a suspended sentence. The Appellant was sentenced to cumulative prison sentences totalling 4 years and a further prison sentence of 18 months suspended for 2 years. No consideration was given by the learned Magistrate to the total sentence appropriate for all the separate offences.

On the 7th November 1996 the Appellant appeared again in the Magistrates Court. That was in respect of Magistrates Court Case No. 257/96 (Criminal Appeal 61 of 1997). The Appellant appeared on a charge of larceny from a dwelling to which he had previously pleaded not guilty. On the 7th November 1996 he changed his plea to guilty. The facts were that the Appellant on the 2nd March 1996 had entered the complainant's house at 11.15 p.m. when she was sleeping and stole $50 in cash and property valued at $1,500. Subsequently property valued at $1,000 was recovered. The learned Magistrate noted the seriousness of this type of offending and sentenced the Appellant to 2 years imprisonment. That sentence was consecutive to the sentence of 4 years imprisonment that the offender was then serving.

When this further sentence of 2 years consecutive imprisonment was imposed on the 7th November 1996 the learned Magistrate did not give consideration to all the offences to ensure that the increase of the sentence to 6 years imprisonment was appropriate for the total offending. Indeed, details of the convictions for which the Appellant was then serving imprisonment were not even given to the learned Magistrate.

The totality principle in sentencing is very important. It applies when a serving prisoner is to be sentenced for a further offence or a person is to be sentenced for more than one offence at the same time. A separate prison sentence can be considered for each offence and if appropriate be consecutive. However, the sentencer must then stand back and view the overall total sentence to ensure that it properly reflects the criminality from all offences and is not unduly harsh.

Accordingly, on this appeal the question to be considered is whether the total sentence of 6 years imprisonment is manifestly excessive for the total criminality represented by the 6 offences committed by the Appellant.

This was serious criminal offending. The Appellant committed a total of 6 offences. One was committed on the 2nd March 1996 and the other 5 were committed over a period of 2 weeks from the 26th July 1996 to the loath August 1996. Five of the offences involved breaking into or otherwise entering buildings namely nurses quarters, houses, a school and a shed. on one occasion the occupant of the house was asleep in bed. All offences involved theft. Property to the value of $8,600 was stolen. A considerable amount was recovered. The actual loss is in the region of $500 to $600. However, the recovery of the stolen tools valued at $6,655 was due to the actions of a citizen who saw the property being concealed and not because of any remorse of assistance given by the Appellant.

The prevalence of this type of burglary and theft offending in the community and the alarm and loss it causes to innocent citizens has influenced the Courts to impose deterrent sentences. Such a sentence is appropriate for the magnitude of the offending in this case.

The Appellant had shown a propensity for this type of criminal offending which indicated that he was a threat to society. He certainly could not claim any credit for good character. At the time he was sentenced he had 38 previous convictions. These were for dishonesty offences committed over a period of 15 years from 1979 to 1994. A good many of those offences were for breaking into buildings and stealing.

Numerous sentences of imprisonment had previously imposed. On the last occasion prior to this offending namely on the 17th February 1994 the Appellant was sentenced to 2 years imprisonment for larceny. This and earlier prison sentences of up to 3 years interspersed by suspended prison sentences had been neither rehabilitative nor deterrent.

These further offences were committed only 2 years after the Appellant's last sentence of imprisonment which was for or a period of 2 years. They amounted to serious crime committed by a person who could expect and deserve little sympathy from the Courts. Clearly a substantial prison sentence was appropriate for this offending by this offender.

However, there are some matters that ought to have been taken into account. The Appellant pleaded guilty at the first opportunity to 5 of the 6 offences. He also ultimately pleaded guilty to the 6th charge after originally entering a plea of not guilty. When dealing with the first case to which the Accused had pleaded guilty, the learned Magistrate accepted that the Appellant showed remorse and should be given another chance. He therefore imposed a suspended sentence. The further serious offences to which the Appellant subsequently pleaded guilty precluded any consideration of such leniency being continued but the learned Magistrate had accepted some contrition on the part of the Appellant. The offending for which the Appellant was sentenced on the 16th August 1996 were separate offences but they represented an episode of similar offences over a relatively short period. Although the offending had serious aspects there was no violence involved and the total loss to the complainants was only $500 to $600. The Appellant is married with children and has family responsibilities.

After giving due consideration to these matters I am satisfied that a total sentence of 6 years imprisonment is excessive for the criminality represented by all the offences. Nevertheless, the extent and the gravity of the offending cannot be overlooked. A lengthy prison sentence must be imposed for these serious offences committed by this Appellant. However, a total term of 4 ½ years is sufficient in the circumstances.

This reduction can be achieved by ordering that one of the consecutive sentences of 18 months imprisonment imposed in the Magistrates Court on the 16th August 1996 be served concurrently. That would be appropriate for the burglary offence in the Magistrates Court Case No. 574/96 (App. 31 of 1997). That offence was committed on the same day as the school breaking of fence. The Appellant broke into a house when the occupants were absent and stole $45.

Accordingly, I make the following orders:

1. Criminal appeal No. 31 of 1997 in respect of Magistrates Court case No. 574/96 is allowed. The sentence of 18 months imprisonment is confirmed but it is to be served concurrently with the sentence of 18 months imprisonment imposed in the Magistrates Court case No. 573/96.

2. Criminal appeals Nos. 32, 33, 34 and 61 of 1997 in respect of Magistrates Court cases 572, 573, 575 and 257 of 1996 are dismissed.

3. The effect of this decision is that the total sentence of 6 years imprisonment imposed on all charges in the Magistrates Court is reduced to 41/2 years which commenced on 16th August 1996.

Justice D.B. Pain

HAA0031.97S