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Colati v The State [2002] FJHC 108; HAA0033J.2002S (10 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0033 OF 2002
(Suva Criminal Case No. 351/02)

Between:

IOSEFO LEWANIMASI COLATI; and
JOVESA RATUBALAVU
Appellants

And:

THE STATE
Respondent

Hearing: 9^th May 2002
Judgment: 10^th May 2002

Counsel: Appellants in Person
Mr N. Nand for Respondent

JUDGMENT

The Appellants appeal against their sentence of two years imprisonment each in respect of the following offence:

Statement of Offence

HOUSE BREAKING, ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Act 17.

Particulars of Offence

IOSEFO LEWANIMASI COLATI and JOVESA RATUBALAVU on the 10^th day of February, 2002 at Nasinu in the Central Division, broke and entered the dwelling house of Tom Davis and stole from therein a vacuum cleaner valued $200.00, a microwave valued $695.00, a clock radio valued $30.00, stereo valued $2,000.00, disk rack with 28 discs valued $280.00, shoes valued $30.00, handbag valued $120.00, 17 bottles of wine valued $1,000.00, insulation tape valued $3.00, handbag valued $10.00, 5 handkerchiefs valued $2.50, 13 pairs of socks valued $25.00, shoes valued $106.00, flip flops valued $3.00, 7 sulus valued $70.00, 17 neckties valued $300.00, a moisturiser valued $4.00, 5 bottles of wine valued $250.00, handbag valued $30.00, silver plater valued $80.00, silver plater valued $100.00, 2 sugar shakers valued $50.00, bottle of wine valued $25.00, 15 silver plate mat valued $150.00, 1 cruton silt valued $100.00, kitchen knife valued $5.00, 51 table knives valued $200.00, 22 table knives valued $160.00, silver spoons valued $60.00, 23 table spoons valued $70.00, 2 silver table knives valued $20.00, 2 silver handle fork valued $20.00, 23 silver eating forks valued $90.00, 11 silver spoons valued $110.00, 10 silver plated spoons valued $100.00, 50 eating forks valued $200.00, 42 table spoons valued $220.00, 21 tea spoons valued $40.00, 25 table spoons valued $200.00, 34 stainless steel forks valued $140.00, 6 silver teaspoons valued $30.00, 2 silver teaspoons valued $10.00, 1 pair spoon valued $5.00, 1 pair medium spoon valued $10.00, wine glass valued $5.00, 6 pairs 3/4 pants valued $60.00 and a green and red jacket valued $50.00, all to the total value of $7,482.50, the property of Tom Davis.

The facts that were outlined in the Magistrates= Court were that the two Appellants broke and entered the house of Tom Davis, when it was vacant, by removing five louvre blades. They both admitted committing the offence when interrogated by police and showed the police where they had hidden the stolen property. All the property was recovered. The facts did not disclose that either one of the Appellants was more culpable than the other.

In mitigation the Appellants= counsel said that the 1^st Appellant was 35 years old, married with four children and was remorseful. She said the 2^nd Appellant was a 21 year old first offender who is married with one child. She further said that both Appellants had helped the police recover the stolen property.

The learned Chief Magistrate sentenced both the Appellants to two years imprisonment, after giving them credit for their pleas of guilty and the recovery of the property.

The Appellants now appeal against sentence upon the following grounds:

1. The learned Chief Magistrate did not consider remorse, the Appellant=s families, and previous good character.
   
2. In respect of the 2^nd Appellant, inadequate weight was given to the fact that he was a first offender.
   
3. The sentences were harsh and excessive.
   

At the hearing of the appeal the 1^st Appellant presented written submissions expressing remorse and asking for leniency. The 2^nd Appellant said that he was a first offender and that he should have been given credit for that.

State Counsel submitted that the sentences were within the tariff for House-breaking offences and that they were not wrong in principle.

The tariff for similar offences appears to be between two to three years. Given the value of the property stolen the Magistrate was entitled to start at the highest end of the tariff. He then rightly adjusted the sentence for the guilty pleas and the fact that the Appellants helped the police to find the stolen property. However it is not clear from the record that he took into account their previous good character. The 1^st Appellant has two previous convictions but they are both very old and he has obviously kept out of trouble for almost ten years.

In all the circumstances I am not persuaded that any credit was given for good character and I therefore reduce their sentences by 6 months, to 18 months. Their appeals are successful to that extent.

Nazhat Shameem
JUDGE

At Suva
10^th May 2002