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Moclad v The State [2004] FJHC 193; HAM0049J.2003S (2 April 2004)

THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0049 OF 2003

Between:

RAZIA MOCLAD
d/o Mohammed Ishaq
Applicant

And:

THE STATE
Respondent

Mr. R. Singh for Applicant
Mr. J. Rabuku for State

Hearing: 26th March 2004
Judgment: 2nd April 2004

JUDGMENT

This is an appeal against sentence. The Appellant was charged as follows:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

Razia Moclad d/o Mohammed Ishaq, Atish Chand s/o Ramesh Chand, Archina Davika d/o Latchmayia and Sunita Devi d/o Ram Prasad on the 8th day of December 2003 at Nausori in the Eastern Division, stole 2 x 500 grams washing powder, 11 x 170 grams Sunbell Tuna Flakes valued at $8.69 and 4 x 900 grams Pacific Soap valued at $4.56 to the total value of $22.23, the property of Rajendra Foodtown Supermarket, Nausori.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

Razia Moclad d/o Mohammed Ishaq, Atish Chand s/o Ramesh Chand, Archina Davika d/o Latchmayia and Sunita Devi d/o Ram Prasad, on the 8th day of December 2003 at Valelevu in the Central Division stole groceries valued $55.58 and assorted baby wear valued $49.30 to the total value of $102.11, the property of New World Supermarket, Valelevu.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

Razia Moclad d/o Mohammed Ishaq, Atish Chand s/o Ramesh Chand, Archina Davika d/o Latchmayia and Sunita Devi d/o Ram Prasad on the 8th day of December 2003 at Valelevu in the Central Division stole groceries valued at $166.59 and assorted clothing valued at $90.88 to the total value of $257.47, the property of R.B. Patel Supermarket, Centrepoint.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

Razia Moclad d/o Mohammed Ishaq, Atish Chand s/o Ramesh Chand, Archina Davika d/o Latchmayia and Sunita Devi d/o Ram Prasad, on the 8th day of December 2003 at Valelevu in the Central Division stole assorted hardware items to the total value of $216.08, the property of Vinod Patel Hardware Centrepoint.

FIFTH COUNT

Statement of Offence

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

Particulars of Offence

Razia Moclad d/o Mohammed Ishaq, Atish Chand s/o Ramesh Chand, Archina Davika d/o Latchmayia and Sunita Devi d/o Ram Prasad on the 8th day of December 2003 at Suva in the Central Division, stole groceries to the total value of $247.52, the property of Rajendra Foodtown Supermarket, Suva.

On the 10th of December 2003, the Appellant pleaded guilty on all counts. Her co-defendants also pleaded guilty. None was represented by counsel.

The facts of the case were that the Appellant with 3 others, on the 8th of December 2003, went to the five supermarkets named in the charges, and stole the items specified therein. The total value of the goods stolen was $845.41.

The Appellant agreed to the facts. She was a first offender. In mitigation she said she was 19 years old, was married with no children and was a housewife. She said that all the properties were recovered. She offered no reason for this excursion into crime. Nor did the other co-defendants explain the crime spree of the 8th of December 2003. The learned Magistrate said that all five offences were committed on one day and were well-planned by the defendants. He said:

“In my view, a short sharp prison sentence is needed to persuade you people not to repeat the offence in the future. All accused are convicted as charged and are each imprisoned for 7 days on each count and all their sentence to be concurrent to each other.”

The Appellant appealed against severity of sentence. She was granted bail pending appeal. Before the hearing of her appeal she also filed an additional ground of appeal saying that she had not been given her right to legal representation and that she had been prejudiced by lack of representation. However her counsel abandoned this ground of appeal when a perusal of the court record showed that she had been given that right and that she had waived it. He confined his submissions to the question of severity of sentence.

He said that a prison sentence was unduly harsh for a young first offender, who had offended out of an apparent need for an adventure. He said that the Appellant was married to an Australian citizen and was awaiting her migration papers. He said that a conviction would frustrate her hopes of migrating and that a section 44 discharge would be appropriate in this case.

State counsel opposed the appeal saying that the offences were serious and warranted a departure from the principle of keeping first offenders out of prison. He said that the Appellant’s co-defendants had already served their terms of imprisonment and there was no reason to treat this Appellant differently. Finally he said that a wish to migrate did not justify a section 44 discharge, a sentence usually reserved for the morally unblameworthy.

It is correct that the courts try hard to give first offenders a non-custodial sentence. This is because first offenders are more likely to respond to rehabilitation and are less likely to re-offend. Further most first offenders are convicted of minor crimes, such as petty thefts, or of minor roles in more serious offences. However there are some offences, where the seriousness of the offending outweighs the general principle of the rehabilitation of first offenders. Rape, robbery with violence, manslaughter, and serious thefts fall into this category of serious offending.

In this case, the planning, the offending in a group, and the value of the goods stolen, all justify a custodial sentence, although considerable discount was to be expected on the grounds of the guilty plea and good character. In the circumstances I see nothing wrong in principle with a 7 day term of imprisonment.

I cannot agree that this is a suitable case for an absolute discharge. This is not a case of only a technical breach of the law or of a situation where the Appellant is not morally to blame for the crime. Although counsel submitted that she was not the principal offender, she was a willing participant in the criminal expedition. The fact that she took part in it for “an adventure” rather than financial gain, is not a mitigating factor. If anything, it is an aggravating factor. The short prison term may persuade her that disobedience of the law is a serious business, carrying with it, criminal sanctions. Finally I am not persuaded that migration is a reason to impose a discharge. The Appellant did not see fit to inform the learned Magistrate of her wish to migrate, and I see no reason why a person who wishes to migrate should be treated differently from his or her co-defendants who are not in a position to migrate and have now served their 7 day sentences.

For these reasons, this appeal is dismissed. The Appellant must now serve her sentence.

Nazhat Shameem
JUDGE

At Suva
2nd April 2004