| Fiji Islands - Wainiqolo v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 0044 & 0045 OF 1998
BETWEEN:
:
IOWANE WAINIQOLO
Appellant
AND:
THE STAT Respondent
MrKohli for the Appe Appellant
Ms. A. Driu for the Rthe Respondent
JUDGMENT
These two appeals concerns the same appellant, were heard together on the same day, and may be conveniently dealt with in a single
judgment.
In Criminal Appeal No. 44 of 1998 the appellant and another were jointly charged with stealing $1,000 worth of yagona plants. The appellant pleaded 'guilty' to the offence and was sentenced to nine (9) months imprisonment which the appellant's counsel claims is 'harsh and excessive' in so far as the trial magistrate did not take into account the appellant's 'guilty' plea or, the possibility of a 'non-custodial' sentence.
The trial magistrate in sentencing the appellant expressed his concern at the prevalence of the offence in a rural farming community
and the 'cavalier fashion' in which the appellant and his co-accused committed the offence. He was of the view that a 'deterrent sentence is essential'. I entirely agree.
The offence of Simple Larceny with which the appellant was charged carries a maximum sentence of five (5) years imprisonment for a first offender and ten (10) years for a second offender such as the appellant.
In this latter regard it is noteworthy that barely ten (10) months earlier in November 1997 the appellant has been convicted of Larceny and was fined $40.00. Clearly such a non-custodial measure did not deter the appellant from re-offending.
What's more there can be no denying that 'yagona' over recent years has become a very profitable and valuable cash crop with a ready market for mature plants. The ease of disposal
and the difficulty of policing and preventing the theft of yagona plants from large plantations extending over several acres makes
it all the more necessary that deterrent sentences be imposed.
In this regard it is noteworthy that the appellant said in mitigation: 'I needed to steal for some money but no real reason to steal ... Also did it for fun.' No-one 'needs to steal' for money, much less, for entertainment sake.
The appeal against sentence is without merit and is dismissed.
In Criminal Appeal No. 45 of 1998 the appellant was convicted on his 'guilty' plea to an offence of defiling his girl-friend's fourteen (14) year old daughter and was sentenced to three (3) years imprisonment on 23rd July 1998.
The appellant according to the very full and carefully kept record of the trial magistrate, clearly understood the nature of the charge
laid against him and 'admitted the facts (outlined by the prosecutor) in full'.
No complaint has been made against his conviction nor did his counsel seek to raise any at the hearing of the appeal which was solely
against the sentence imposed.
In this latter regard counsel submits that the trial magistrate, without any evidence, improperly considered or assumed that the complainant
would be 'physically, mentally and psychologically' traumatised 'forever' by what the appellant did to her.
I reject the submission which wholly ignores the 'Treatment' prescribed for the complainant, by the examining doctor where he wrote in her medical report: 'psychotherapy'.
What's more the offence is aggravated in several respects not the least by the undisputed fact that the appellant accepts that he
'had brought (the complainant) up as a little girl' since she was '9 years old' and, in his own words, was: 'like my stepdaughter'. As such, he was effectively her father-figure.
Counsel and the appellant also drew the Court's attention to the fact that the complainant was not 'a virgin' at the time of the incident but that merely serves to emphasize the depravity of the appellant who was responsible for her loss of
virginity a week earlier.
In sentencing the appellant the court cannot ignore the clear danger of allowing the appellant to remain in the same house as the
complainant. For her sake, if for no one else, he should be removed from the home.
If I may say so the appellant in committing and repeating the offence has plainly abused his position of power and trust, and in doing
so has forfeited any claim he may have to the Court's leniency and mercy.
The appeal against sentence is accordingly dismissed.
D.V. Fatiaki
JUDGE
At Labasa,
22nd March, 1999.
Haa0044j.98b
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