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Turaga v State [2002] FJHC 176; HAA0082J.2002S (25 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 082 OF 2002S

Between:

ILAITIA TUWERE TURAGA
Appellant

And:

THE STATE
Respondent

Hearing: 23rd October 2002
Judgment: 25th October 2002

Counsel: Appellant in Person
Ms L. Chandra with Ms S. Shah for State

JUDGMENT

This is an appeal against the sentence of three years imprisonment imposed by the Suva Magistrate’s Court for the offence of receiving stolen property.

The Appellant was originally charged with the offence of housebreaking, entering and larceny contrary to section 300(a) of the Penal Code. However, after hearing the evidence at the trial, the learned Magistrate convicted instead of receiving stolen property contrary to section 313(1) of the Penal Code, on the basis that the Appellant was found in possession of stolen property. This, he was entitled to do, under section 180 of the Criminal Procedure Code. The Appellant was sentenced to three years imprisonment.

The Appellant appeals against sentence on the basis that undue weight was put on his previous convictions, and that the sentence was harsh and excessive.

At the trial, the Appellant was unrepresented. He had waived his right to counsel. He pleaded not guilty. Two co-defendants pleaded guilty and were each given suspended sentences on the ground that they were first offenders. The trial commenced on 18th June 2002. The evidence was that one Mr Ding Di, a businessman of Ratu Mara Road, kept watches and other household items at his house, stored in packets. On 24th April 2002, he discovered that his house had been broken into, and a number of items missing. Among them were watches to the value of $6000. He later identified some items and about 200 watches as his, at the Nabua Police Station. He also identified two bags which held these items. On 25th April 2002, PC Filipe Puamau was on patrol in Suva, when he saw the Appellant standing at the corner of the Metropole and Usher Street. He searched him and found 6 watches inside his jacket pocket. They were new and still inside their plastic covering. The Appellant told the Constable that the watches were from a break-in at Nabua and that the rest of the watches stolen were in a room at the King’s Hotel. He then showed the police where the other watches were, and handed them over. The watches were in one of the bags that had been identified by Mr Ding. The Appellant made a statement to the police in which he admitted to the breaking and entering of the house of Mr Ding. In his sworn evidence, the Appellant said that he had met his two friends (the co-defendants) on their return from breaking into the house of Mr Ding. He went drinking with them at the Nasinu cemetery and then returned with them to the King’s Hotel. He said that he knew they had broken in and stolen items because he heard them talking about it, and was given a share of the proceeds. He was convicted on the basis of these admissions.

At the hearing of the appeal, the Appellant said that his conviction was unsafe because there were discrepancies in the prosecution evidence. Having perused the record, I find no such discrepancies. As to sentence, the Appellant said in mitigation that he wanted another chance, and expressed remorse. The learned Magistrate, after considering mitigation and the list of previous convictions considered that the Appellant should be given a custodial sentence.

State counsel submitted that the sentence of three years imprisonment was right in principle and was within the tariff for offences of receiving stolen property, which is between three to five years. Indeed, she submitted that the sentence was lenient in the circumstances of this case.

The Appellant has thirteen previous convictions, dating from November 1994. In nine years, the Appellant has committed several offences of burglary, robbery with violence and drug-related offences. He was therefore not entitled to the leniency shown to his co-defendants both of whom were first offenders. Further, the offence of receiving stolen property calls for heavier sentences than larceny, because theft depends on receivers to be profitable. In the circumstances, the sentence of three years imprisonment was appropriate and quite right in principle. As to State counsel’s invitation to enhance sentence, I consider that such enhancement might only be appropriate if the sentence was so lenient that it was in effect, wrong in principle. I do not consider that this sentence falls into that category.

The appeal against sentence is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
25th October 2002