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Seru v State [2002] FJHC 183; HAA0084J.2002S (22 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS: HAA 84 & 85 OF 2002S

Between:

NAVITALAI SERU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Ms S. Shah for State

Hearing: 15th November 2002
Judgment: 22nd November 2002

JUDGMENT

On 26th April 2002 the Appellant was convicted of an offence of burglary and larceny in respect of the house of one Peter Loren Barton in Tulani, Koro. He was given a sentence of 2 years imprisonment suspended for 2 years. On 19th June 2002, he was convicted, on his plea of guilty, on one count of damaging property and one count of larceny. The court imposed a sentence of 2 years imprisonment and activated the suspended sentence of 2 years imprisonment, imposed on 26th April. The Appellant now appeals against his total sentence of 4 years imprisonment.

The charges were as follows:

FIRST COUNT

Statement of Offence

DAMAGING PROPERTY: Contrary to section 324 of the Penal Code, Act 17.

Particulars of Offence

SAMUELA WAILEVU and NAVITALAI SERU, on the 11th day of June 2002 at Waisali, Koro in the Eastern Division, wilfully and unlawfully damaged the door of a container valued at $250.00, the property of GENE DICIANO.

SECOND COUNT

Statement of Offence

LARCENY: Contrary to sections 259(1) and 262(2) of the Penal Code, Act 17.

Particulars of Offence

SAMUELA WAILEVU and NAVITALAI SERU, on the 11th day of June, 2002 at Waisali, Koro in the Eastern Division, stole cash $500.00, 1 Chainsaw valued at $2,500.00, 1 Brush cutter valued at $1,400.00, 1 Arrow cutter valued at $60.00, 2 Fower cutters valued at $120.00, 1 Revit tool valued $110.00, 1 Trimming sheer valued at $60.00, 1 Padlock valued at $70.00, to the total value of $4,820.00, the properties of GENE DICIANO.

The Appellant, who waived his right to counsel, pleaded guilty on both counts. The prosecution outlined the facts which were that the Appellant, with another, broke into the house of one Gene Diciano, an American businessman who had built a house on Koro Island. On 10th June 2002, he left for Suva. His watchman found the house broken into and the items in the charge, stolen. The Appellant and his co-accused were apprehended. They admitted the offences under caution. All items were recovered. The facts were admitted.

In mitigation the Appellant said he was 22 years old and a farmer. He expressed remorse and said he was drunk when he committed the offence. The learned Magistrate sentenced both accused on each count to 2 years imprisonment. He asked the Appellant if there was any reason why his suspended sentence should not be activated. The Appellant asked for another chance. The learned Magistrate then activated the suspended sentence in full.

The Appellant says that this total sentence is harsh and excessive, that he does not wish to remain in prison and that all items were recovered. State counsel opposes the appeal saying that the sentences were within the tariff, and that the activation of the suspended sentence was justified because the Appellant had committed a similar offence within a short period of time during the operational period.

The maximum sentence for damaging property under section 324 of the Penal Code, is 2 years imprisonment. The tariff for any offence is usually well below the statutory maximum. Unfortunately the learned Magistrate did not indicate his starting point. However for the criminal damage of a door valued at $250.00, the maximum sentence of 2 years imprisonment appears to be manifestly excessive. It is reduced to 6 months imprisonment.

On count 2, the maximum sentence for simple larceny is (on a second conviction) 10 years imprisonment. The tariff, on a first conviction under sections 259 and 262 of the Penal Code, is two months to nine months imprisonment (Paula Bale -v- The State Crim. App. No. 27 of 1998, Pauliasi Nadali -v- The State Crim. App. No. 29 of 1998, Iowane Wainiqolo -v- The State Crim. App. No. 44, 45 of 1998, Ronald Vikash Singh Crim. App. No. HAA035 of 2002). It is logical, that on a second conviction the tariff is doubled to four months to 18 months imprisonment, because the statutory maximum increases from five to ten years. I accept this as the tariff in cases of second convictions for larceny.

The learned Magistrate might have chosen a starting point of 12 months imprisonment to reflect the seriousness of the offending. He might have increased the sentence to 2 years on the basis that the offences were committed against those who had chosen to invest in Fiji, and on the basis that the offence was damaging to the tourist industry. He might then have reduced the sentence to 18 months to reflect the guilty plea and the recovery of the items. There were no other mitigating factors. He would therefore have arrived at a sentence of 18 months imprisonment. The offence on Count 1 is directly related to the theft and arose from the same incident. As such, concurrent sentences were appropriate. A total sentence of 18 months imprisonment would then have been the result. The sentence of 2 years imposed on Count 2 is therefore not so excessive as to be wrong in principle. The learned Magistrate might have given greater weight to the need to protect visitors in an island committee than another judge or magistrate. However, it would be wrong for an appellate court to interfere with sentence on this basis. The sentence of 2 years on Count 2 is not so excessive as to be wrong in principle. As to the suspended sentence, a court is entitled to activate some or all of a suspended sentence, if an offence is committed within the operational period. Reasons for not activating the sentence might be commission of the offence near the end of the operational period, or the commission of a very minor offence. In this case the Appellant, who was warned of the consequences of re-offending when he was given the suspended sentence, re-offended only 2 months after the sentence was passed.

Further the offence was of a similar nature to the earlier offence. He was not entitled therefore to any leniency. The learned Magistrate did not err in ordering full activation of the suspended sentence.

In total the total sentence of four years imprisonment is not wrong in principle, or excessively severe. This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
22nd November 2002