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Baleinagaga v The State [2003] FJHC 145; HAA0042D.2003S (9 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0042 OF 2003S

Between:

MAIKELI BALEINAGAGA
Applicant

And:

THE STATE
Respondent

Counsel: Applicant in Person
Mr. S. Leweniqila for State

Hearing: 3rd October 2003
Ruling: 9th October 2003

RULING

The Applicant was charged with the following offences:

FIRST COUNT

Statement of Offence

BURGLARY: Contrary to Section 299(a) of the Penal Code, Act 17.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 17th day of November 2001 at Suva in the Central Division, did break and enter the dwelling house of SUN KHOO with intent to commit a felony namely, Larceny.

SECOND COUNT

Statement of Offence

LARCENY IN DWELLING HOUSE OF A PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to Section 270(a) of the Penal Code, Act 17.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 17th day of November, 2001 at Suva in the Central Division, stole in the dwelling house of SUN KHOO, chattels, 3 mobile phones, Dell Laptop computer, Sony Video Camera, assorted clothings, gold chain, logging ladies wrist watch, the properties to a value amounting to not less than ten dollars, to the total value of $14,820.00, the property of the said SUN KHOO.

THIRD COUNT

Statement of Offence

BURGLARY: Contrary to Section 299(a) of the Penal Code, Act 17.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 24th day of November 2001, at Suva in the Central Division, did break and enter into the dwelling house of SUN KHOO with intent to commit a felony namely, Larceny.

FOURTH COUNT

Statement of Offence

LARCENY IN DWELLING HOUSE OF A PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to Section 270(a) of the Penal Code Act 17.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 24th day of November 2001, at Suva in the Central Division, stole in the dwelling house of SUN KHOO chattels, 2 Akai Brand video player, 30 CDs, 3 bottle whisky, 2 gross BH10, children’s golf set, the properties to a value amounting to not less than ten dollars, the property of the said SUN KHOO, to the total value of $1,984.00.

FIFTH COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code Act 17.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 24th day of November 2001, at Suva in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing took to his own use and benefit private motor vehicle registration number DM727, the property of SUN KHOO.

SIXTH COUNT

Statement of Offence

DRIVING A MOTOR VEHICLE WITHOUT A DRIVING LICENCE: Contrary to Section 56(1)(a) (6) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 24th day of November 2001, at Suva in the Central Division drove a motor vehicle along Makita Street without being holder of a driving licence of the appropriate class.

SEVENTH COUNT

Statement of Offence

DRIVING A MOTOR VEHICLE IN CONTRAVENTION OF THIRD PARTY POLICY RISK: Contrary to Section 4(1)(2) of the Motor Vehicle (Third Party Policy) Act 177.

Particulars of Offence

MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU, on the 24th day of November, 2001, at Suva in the Central Division drove a motor vehicle along Makita Street when there was not in force in relation to the use of the said motor vehicle by the said MAIKELI BALEINAGAGA TIKOMAIVALEVEIVESU of a policy of insurance in respect to the third party policy risk as complied under the provision of this Act.

The charges were laid on the 31st of December 2001, and the case called on the same day. He pleaded guilty on the 18th of January. The facts were read. They were that the complainant who is a New Zealander and working in Fiji as an accountant at Mobil Oil, found his house broken into on the 18th of November 2001. The items in the charge were found missing. On the 24th of November 2001, the same complainant found his car missing from the garage. He also found that his house had been broken into again and the items listed in count 4 missing. The police found the car abandoned at the Mobile Service Station in Tamavua. The Applicant was located. He admitted all the offences and was charged. He was an escapee from Nasinu Prison.

These facts were admitted, as were 7 previous convictions from 2000. At the hearing of this application, State counsel told me that the list has since been augmented by no less than 26 previous convictions in 2002. However these convictions had not been entered when this case was being dealt with in the Suva Magistrates’ Court and I disregard them for the purposes of this application.

The learned Magistrate sentenced the Applicant on the 18th of January 2002 as follows:

Count 1 - 2 years imprisonment;

Count 2 - 2 years imprisonment;

Count 3 - 1 years imprisonment

(Consecutive)

Count 4 - 2 years imprisonment;

Count 5 - 3 months imprisonment;

Count 6 - Discharged;

Count 7 - Discharged and disqualified

from holding a driving

licence for 2 years.

The sentences on Counts 4 and 5 were to be served concurrently to the total sentence on Counts 1, 2 and 3. In effect, the total term to be served is 5 years imprisonment.

The Applicant now attempts to appeal against this sentence. His grounds are not clear, but his main complaint appears to be that the Prisons Department has miscalculated the total term to be served. At the hearing of this application he said that he also wanted to appeal against the sentence as it was harsh and excessive.

He is 1 year and 5 months out of time. He offered no explanation for the delay in the filing of the appeal. On a perusal of the court record I can find no possible ground of appeal. The sentence of 5 years in total for what was in effect a burglary on two occasions in the same victim’s house, was not harsh or excessive. The Applicant was not entitled to the leniency which might have been shown to a first offender.

There is no good cause shown to justify the enlargement of time and I refuse the application. However I have noticed an error in the Applicant’s record of previous convictions. It states that the convictions were as follows:

Count 1 - 2 years imprisonment;

Count 2 - 2 years imprisonment;

Count 3 - 2 years imprisonment;

Count 4 - 2 years imprisonment;

Count 5 - 3 months imprisonment

convicted and discharged u/s

44.

There is no mention of counts 6 and 7, nor is the order that the sentences on Counts 4 and 5 be served concurrently to the sentences on Counts 1, 2 and 3 recorded. The record of conviction is inaccurate and must be amended. It should read as follows:

Count 1 (Burglary) - 2 years imprisonment;

Count 2 (Larceny in dwelling house of a property to a value amounting to not less than ten dollars) - 2 years imprisonment;

Count 3 (Burglary) - 1 years imprisonment;

(to be served consecutively)

Count 4 (Larceny in dwelling house of a property to a value amounting to not less than ten dollars) - 2 years imprisonment;

Count 5 (Unlawful use of motor vehicle) - 3 months imprisonment;

(to be served concurrently with each other and with Counts 1 – 3)

Count 6 (Driving a motor vehicle without a driving licence) - Absolute Discharge;

Count 7 (Driving a motor vehicle in contravention of third party policy risk) - Discharged and disqualified from driving for 2 years.

It is possible that the prison records are similarly inaccurate and must be amended. The Applicant is to serve a total of 5 years imprisonment, from the 18th of January 2002, to be served concurrently to any other term being served on that day.

Nazhat Shameem
JUDGE

At Suva
9th October 2003