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Veitaila v The State [2005] FJHC 105; HAA0027J.2004B (5 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA0027 – 30 OF 2004LAB

BETWEEN:

NAVITALAI VEITAILA

v.

STATE

Hearing: 4th May 2005
Judgment: 5th May 2005

Counsel: Mr. D. Goundar for State.
Mr. A. Sen for Appellant.

JUDGMENT

This is an appeal against a total sentence of 2 years and 10 months on four separate files. Because the appeal is against all four sentences I deal with them together in this judgment.

On each file he was charged with housebreaking, entering and larceny. None of the items stolen was high in value, although in one house he stole a JVC stereo, and in another a mobile phone. He pleaded guilty on all counts on the 19th of April 2004, after he was granted legal aid and was represented by counsel. The facts of all the cases were similar. In each he broke and entered into various houses of residents, and stole the items specified in the charges. He was later located by the Police and interviewed. He confessed to all the offences and was charged.

The appellant agreed to the facts. He had one previous conviction, also for housebreaking in 1991. He was entitled to be treated as a first offender because of the age of it. In mitigation counsel said that the appellant was 28 years old, married with two children in primary school. He is a farmer, lives in his village and is the sole breadwinner in his family. All items were recovered and the appellant expressed remorse.

In his sentencing remarks, the learned Magistrate correctly identified the tariff for housebreaking offences. He started at 2 years imprisonment. He gave a 1/3 discount for mitigation and arrived at 16 months imprisonment in respect of 4 cases consecutive to 6 months on Case No. 88/2004 consecutive to 6 months on Case No. 90/2004 and a further consecutive 6 months term in Case No. 148/2004. The justification he gave for the consecutive terms was that the complainants were different.

The Appellant now appeals against this total sentence on the ground that it is harsh and excessive. Counsel said in submissions that the learned Magistrate had placed no weight on the mitigation presented, that he was in error in finding that the offence of housebreaking was prevalent and “on the rise” in Labasa, and that the consecutive sentences were wrong in principle because all the offences were committed within a short time frame and in the same or similar manner.

State counsel opposed the appeal, referring to the tariff for housebreaking offences, and said that the total sentence was correct in principle. He also submitted that a Resident Magistrate in Labasa was entitled to conclude that certain types of offences are prevalent at particular time.

The tariff for housebreaking offences is indeed between 18 months to 3 years imprisonment. I find that the learned Magistrate correctly approached sentencing in Case No. 27 of 2004 and although the total of 16 months imprisonment was lower than the tariff, the sentencing process was correct in principle. However the learned Magistrate failed to follow the same process on all the files. Indeed because the facts and mitigation were identical, he should have done so. He would then have arrived at 16 month terms on each file. He would then have had to decide on concurrent or consecutive terms. Consecutive terms would have resulted in an excessive total, especially as the series of offences suggest serial petty offending rather than well organised “gang” activity. A total term of 16 months imprisonment, although a few months lower than the tariff is not wrong in principle for a man who is entitled to be treated as a first offender. This appellant’s appeal therefore is allowed. The total term of 2 years and 10 months is quashed. Instead he is sentenced to 16 months imprisonment on each charge to be served concurrently with each other. This appeal succeeds.

Nazhat Shameem
JUDGE

At Labasa
5th May 2005