IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0036 of 2005S

Between:

LEONE ROKOMARAIVALU
Appellant

And:

THE STATE
Respondent

Hearing: 21st June 2005
Judgment: 24th June 2005

Counsel: Appellant in Person
Ms V. Lidise for State

JUDGMENT

The Appellant appeals against his 3 year term, imposed for the offence of housebreaking entering and larceny. The charge reads as follows:

Statement of Offence

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

Particulars of Offence

LEONE ROKOMARAIVALU on the 26th day of May 2004 at Nasinu in the Central Division broke and entered the dwelling house of MICHAEL CHANDRA s/o Chandar and stole from therein $21.00 in cash and $50.00 in coins to the total value of $71.00 the property of the said MICHAEL CHANDRA s/o Chandar.

The case was first called in the Suva Magistrates’ Court on the 15th of September 2004. The Appellant pleaded not guilty. After several mentions, the Appellant pleaded guilty. The facts were that on the 26th of May 2004, between 10am and 1pm, the Appellant broke into the house of one Michael Chandra and stole $50.00 in loose coins and $21.00 in notes. He was seen inside the house by a neighbour. The Appellant ran away but was arrested by the police on the 13th of September 2004. Under caution he admitted the offence.

The Appellant admitted these facts and 9 previous convictions. He committed 5 of these when he was a juvenile. The majority of the convictions are for burglary or housebreaking.

At the time of the offence, the Appellant was 19 years old. He is married with a one month old baby.

The learned Magistrate said that the Appellant had previously been given suspended sentence, but that in this case, a custodial sentence was inevitable. He said that the starting point would be 3 years and that the sentence would also be 3 years imprisonment to protect the public.

The Appellant says that the sentence is harsh and excessive because the learned Magistrate failed to give any weight to his youth and the guilty plea. In his submissions in court, he tendered a letter written by Officer Apimeleki Navuni of the Nasinu Reformative Training Prison. The letter states that the Appellant is 19 years old, and is the elder of two children. His father is a subsistence farmer and his mother a part-time cleaner at a Suva primary school. The Appellant left school at Class 6 to support his family. The Prison Officer states:

“Without pressure, he was destined to work at a very young age to support his father as his father was sickly at times. All these facts did affect Leone’s development from childhood to adolescence till his young adult life now.

Leone Maraivalu is a young man, energetic and hardworking. He has been counselled both spiritually and mentally and deserves to be given a chance to support his young family.”

The State counsel agreed that the tariff was 2-3 years and that there appeared to be no good reason why the Appellant was given the maximum sentence in the tariff. She agreed that the sentence should be reduced.

In Malakai Tuisoba v. The State Crim. App. HAA0098 of 2002S, I found that the tariff for housebreaking offences was 2 to 3 years. The appellant who stole items to the total value of $10,670.00, was sentenced to 2 years imprisonment. He had similar previous convictions and committed the offence when he was employed by a security guard. The 2 year term was upheld on appeal.

In comparison, the Appellant’s offence is less serious. The value of the goods stolen is minimal, he has reconciled with the owner of the house, he has pleaded guilty and expressed remorse. A starting point of 2 years imprisonment would have been appropriate. After adjusting for aggravating and mitigating factors (and there are compelling mitigating factors) a sentence below the tariff might have been justified. Indeed, I arrive at a sentence of 6 months imprisonment.

In the circumstances I consider his sentence to be manifestly excessive. It is quashed and substituted with a 6 month term of imprisonment. This appeal succeeds.

Nazhat Shameem
Judge

At Suva
24th June 2005