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Malo v The State [2004] FJHC 489; HAA0102.2004L (22 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0102 OF 2004L

PAULA MALO
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. N. Nand for the respondent.

Hearing & Ruling: 22 October 2004

JUDGMENT

This is an appeal against sentence.

The appellant was convicted on his plea of guilty on the 18^th May 2004 at the Tavua Magistrates Court and sentenced to the total of 18 months imprisonment with respect to the following offences:

FIRST COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a) of the Penal Code, Cap. 17.

Particulars of Offence

PAULA MALO, on the 3^rd day of May 2004, at Vatukoula in the Western Division, being employed as a Toro Operator by the Emperor Gold Mine, stole 5 power gel valued at $3.05 the property of Emperof Gold Mine.

SECOND COUNT

Statement of Offence

FOUND IN POSSESSION OF EXPLOSIVE WITHOUT A PERMIT: Contrary to section 61 and 63 of the Explosive Regulation Cap. 189.

Particulars of Offence

PAULA MALO, on the 3^rd day of May 2004, at Vatukoula in the Western Division, was found in possession of explosive namely 5 power gel, without a permit.

The facts as presented to the Learned Magistrate and accepted by the appellant were that on the 3^rd May 2003 at about 2345 hours, the appellant was stopped by a security officer, who ceased 5 power gels from him. The appellant is a Toro Operator, aged 44 years, worked in the Philip Shaft and residing at Natunuku Village, Ba.

The appellant was interviewed and admitted stealing the gels. The Learned Magistrate in sentencing the appellant took into account the matters of mitigation placed before him that is, the appellant’s age, the fact that he had lost his employment with Emperor Gold Mine and has school aged children.

He also took into account the appellant was stealing the items for another person and the magistrate did not, quite correctly, take into account a prior conviction in 1988.

Stealing of explosives is indeed a serious matter. Stealing of any items from one’s employer is a serious matter. Employees are a position of trust and that trust is breached by the theft of items from the employer.

The authorities in this country with respect to larceny by servant all rely on Barrack [1985] 81 Cr. App. R 78 and the guideline judgment on sentence there given by Lord Lane CJ. There is from that decision no doubt that an immediate prison term must follow the commission of such an offence.

The courts in this country whilst applying Barrack considered a starting point for a mid range offence of 3 years. I consider the theft of explosives to be a mid range offence notwithstanding their small monetary value.

The Learned Magistrate used as starting point 4 years for the offence of larceny by servant and then took into account the mitigating and aggravating factors with a resultant sentence of 18 months imprisonment. With respect to the second offence, the Learned Magistrate imposed the penalty of 12 months.

There is nothing before me to suggest the sentence imposed by the Learned Magistrate is wrong in principle or manifestly excessive and the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
22 October 2004