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Ratunasau v The State [2004] FJHC 480; HAA0059.2004L (8 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0059 OF 2004L

MANOA RATUNASAU
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Qica for the Respondent

Hearing: 30 September 2004
Ruling: 8 October 2004

RULING

The appellant was convicted on the 17th October 2003 at the Lautoka Magistrates Court for warehouse breaking and larceny and unlawful use of a motor vehicle. The appellant was sentenced to imprisonment for 8 years on the first count and 6 months for second count. The sentences were to be served concurrently.

FIRST COUNT

Statement of Offence

WAREHOUSE BREAKING, ENTERING AND LARCENY: Contrary to section 300 of the Penal Code, Cap. 17.

Particulars of Offence

MANOA RATUNASAU with others, between 1^st and 2^nd day of November 2002 at Lautoka in the Western Division, broke and entered into the warehouse of P.Meghji and stole therein assorted jewelleries valued $100,000.00 and $5,000.00 cash to the total value of $105,000.00 the property of P. Meghji and Sons.

COUNT TWO

Statement of Offence

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

Particulars of Offence

MANOA RATUNASAU with others, between 1^st and 2^nd day of November 2002 at Lautoka in the Western Division, unlawfully and without colour of right but not guilty of stealing took to his own use motor vehicle registration no. DN 994, the property of P. Meghji and Company.

The facts as appearing from the court record are that: between the 1^st November 2002 and the 2^nd November 2002, the warehouse of P. Meghji & Co. was broken into where the strong room containing 2 steel safes, the larger one, 6 feet tall was cut open with a gas torch. Jewelleries worth about $100,000.00 and $5,000.00 cash was stolen. The safes were in a caged enclosure, the floor of which was wet and littered with pieces of metal cut from the safes. The roller door at the rear of the warehouse was tampered with for exit, and the company motor vehicle No. DN 994 was used as the getaway vehicle. The vehicle was later recovered by police abandoned at Vunato, Lautoka. Police investigations recovered some jewelleries from individuals who said that the appellant gave them the jewelleries, which were identified by the wife of a director of P. Meghji & Company.

The appellant appeals against conviction and sentence.

The hearing of the matter took place over several days in July, August and September 2003.

At the conclusion of the hearing, written and oral submissions were presented by the appellant who was unrepresented and by the prosecution, following which the Learned Magistrate on the 13^th October 2003 delivered judgment.

In the course of the hearing before the Learned Magistrate the appellant claimed he had an alibi and called his wife in support of that alibi.

The magistrate rejected the evidence and accepted the evidence of the prosecution witnesses. Whilst there is no evidence of the appellant, physically breaking into the premises, there is evidence of the appellant being possessed of a welding hose, gage and torch being those subsequently found in the premises and there is also evidence of him having being possessed of the jewelleries stolen from the premises.

The Learned Magistrate having the opportunity of observing the appellant and his wife give evidence and observing the prosecution witnesses, formed the view that the evidence of the appellant and his wife was not credible.

The appellant maintains that he sought to call additional witnesses to support his alibi. The record indicates that the Learned Magistrate asked the appellant if these witnesses would do more than, say same things, as previously had been said. The appellant acknowledged that that was the case and accordingly, the Learned Magistrate indicated there was no need to call additional witnesses.

I find that there is no merit in the appeal against conviction, which must fail.

With respect to the appeal against sentence, it is submitted by the appellant that 8 years imprisonment for the first count is excessive. The State acknowledges that this is so.

It is submitted on behalf of the State, the tariff for offences of this nature, is between 1 and 4 ½ years.

The authority relied on for the imposition of penalty of 4 ½ years is Josua Domonalagi v State – Crim. Appeal HAA0094 of 2002L where Govind J. imposed a term of imprisonment for 4 ½ years where a sum of only $20,000.00 was involved. In this instance, I note that the sum of $105,000.00 is involved and accordingly, I consider that tariff to be low. It seems to me that a more appropriate range for the offence before the court would be up to 6 years, noting the maximum penalty for the offence is 14 years imprisonment.

I take as a starting point in the circumstances, a term of imprisonment of 4 years. The appellant’s record shows 30 prior convictions of which 8 are for similar offences to the first count.

Aggravating features are the value of the goods stolen and the small quantity of the goods recovered and accordingly, I think it is appropriate to increase the penalty by 1 year to 5 years with respect to the first count.

No submissions were made with respect to the sentence imposed on the second count and accordingly, I do not propose to interfere with it.

The appeal is allowed in part. The sentence with respect to the first count is quashed and in lieu thereof a sentence of 5 years imprisonment is imposed to commence on 17^th October 2003.

JOHN CONNORS
JUDGE

At Lautoka
8 October 2004