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Naidu v The State [2004] FJHC 12; HAA0144J.2004S (4 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 144 OF 2004S

Between:

CHRISTOPHER NAIDU
Appellant

And:

THE STATE
Respondent

Hearing: 4th February 2005
Judgment: 4th February 2005

Counsel: Appellant in Person
Mr. B. Solanki for State

JUDGMENT

The Appellant was charged as follows in the Suva Magistrates’ Court:

First Count

Statement of Offence

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

Particulars of Offence

CHRISTOPHER NAIDU f/n Shiri Niwasan Naidu, on the 27th day of September 2004, at Navua in the Central Division, broke and entered the dwelling house of Arun Mishra f/n Dip Narayan Mishra and stole therein a car key valued at $7.50, the property of Arun Mishra f/n Dip Narayan Mishra.

Second Count

Statement of Offence

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

Particulars of Offence

CHRISTOPHER NAIDU f/n Shiri Niwasan Naidu, on the 27th day of September, 2004 at Navua in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing takes or converts to his own use a motor vehicle registration number DL533 valued at $22,000.00, the property of Arun Mishra f/n Dip Narayan Mishra.

Third Count

Statement of Offence

DRIVING A MOTOR VEHICLE WITHOUT A DRIVING LICENCE: Contrary to Section 56(a)(6) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence

CHRISTOPHER NAIDU f/n Shiri Niwasan Naidu, on the 27th day of September, 2004 at Navua in the Central Division, drove a private motor vehicle registration number DL 533 on Queens road, without being the holder of a driving licence in respect of the said motor vehicle.

Fourth Count

Statement of Offence

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

Particulars of Offence

CHRISTOPHER NAIDU f/n Shiri Niwasan Naidu, on the 27th day of September, 2004 at Navua in the Central Division, drove a motor vehicle on Queens Road, Nakaulevu when there was not in force in relation to the use of the said motor vehicle by the said CHRISTOPHER NAIDU f/n Shiri Niwasan Naidu, a Policy of Insurance in respect of Third Party Policy Risks, as complies under the provision of this Act.

He pleaded guilty at first call, on the 30th of September 2004. On the 27th of September 2004, he broke the back door padlock of Arun Mishra in Navua, took his car keys which were on top of the refrigerator, drove off with his car and did so without driving licence or third party insurance.

He was a first offender, is 23 years old, expressed remorse and has elderly parents and a 3 month old baby. The learned Magistrate said that such offending was prevalent, and that the Appellant was apprehended in Lautoka. He sentenced him to 2 years imprisonment on Count 1, and 6 months each on Counts 2, 3 and 4, all to be served concurrently. He was disqualified from driving for 12 months.

He appeals against his sentence, saying that it is harsh and excessive and wrong in principle.

At the hearing of this appeal, he said that the complainant was his former landlord, whom he called ‘uncle.’ He said that he had used his car before, with his permission, and that on this occasion he used it without his permission because he had quarrelled with his wife and needed to visit her to solve their problems. He agreed that the disqualification order was proper, but asked for a non-custodial sentence.

Although State counsel said that the 2 year sentence fell within the tariff for house-breaking offences, he agreed that this was not the conventional type of housebreaking. He conceded that because the Appellant was a young first offender, who simply broke into his landlord’s house to borrow his car, a shorter sentence might be justified.

I agree. I consider that although the Appellant acted with irresponsibility and immaturity in taking the car without permission, a two year sentence was far in excess of the seriousness of the offending. In Sereima Bokadi v. State Crim. App. HAA 75 of 2002S, I considered a similar case on appeal. The Appellant had taken a friend’s car without his permission, driven at high speed, lost control and caused an accident resulting in injuries to a passenger. Fines were imposed in that case and I said (at p.7):

“...... although the offence of taking a motor vehicle without the owner’s consent is a serious and prevalent offence, in this case the Appellant went on a “joy-ride” in a friend’s car. This was not a case of dishonesty, rather one of irresponsibility probably fuelled by alcohol.”

Similarly, in this case I consider the Appellant to have been irresponsible rather than dishonest. The breaking-in at his former landlord’s house did however call for a short custodial term despite his good character.

In all the circumstances I consider the total sentences to be harsh and excessive and reduce them as follows:

Count 1 - 4 months imprisonment;

Count 2 - 4 months imprisonment;

Count 3 - 4 months imprisonment;

Count 4 - 4 months imprisonment.

The 12 months order for disqualification stands. Since the Appellant has already served his sentence, he may be released immediately. His appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
4th February 2004