IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0071-0072 of 2005S

Between:

PENI TANIELA
Appellant

And:

THE STATE
Respondent

Hearing: 12th August 2005
Judgment: 23rd August 2005

Counsel: Appellant in Person
Ms P. Madanavosa for State

JUDGMENT

The Appellant appeals against the total of 18 months imprisonment, imposed on him in two cases in the Suva Magistrates’ Court.

In HAA0071 of 2005, he was charged with criminal trespass and larceny. It was alleged that on the 14th of February 2005, at Samabula, he entered the compound of Shant Kumar with intention to steal. Later, he and another entered the compound again and stole an aluminium frame valued at $800 and a car radiator valued at $150.

In HAA0072 of 2005 he was charged with damaging property. The charge alleged that on the 21st of November 2003, he wilfully and unlawfully damaged the door glass of a taxi.

In HAA0071.2005 the Appellant pleaded guilty after waiving his right to legal representation. The facts were that he and his 30 year old accomplice entered the compound of Shant Kumar intending to steal the frame. They were chased away by the complainant. Two days later, the Appellant and two others went back to the same compound and stole the frame and the radiator. The matter was reported to the police. The police found the frame at a scrap metal yard in Walu Bay. They found the Appellant and the two other men sitting outside a canteen nearby. They admitted selling the frame to the scrap yard. They were arrested and charged. The frame was recovered.

The Appellant admitted the facts and 3 previous convictions. He is 19 years old and is unemployed with one child. The probation officer’s report was called for and provided, because the Appellant was on probation for 2 years for an offence of damaging property in May 2004.

The learned Magistrate sentenced him to 3 months imprisonment on Count 1, and 12 months on Count 2, to be served concurrently with each other, but consecutive to the sentence imposed on HAA0072.2005.

In that case, the facts were that on the 21st of November 2003, when he was only 17 years old, the Appellant was with a group of youths in Nanuku Street, Vatuwaqa. The complainant, a taxi driver called Mahesh Prasad, was driving along the street, on his way to visiting a relative, when he was confronted by the group. The Appellant started to force open the left passenger door. It was locked. He punched the door glass and damaged it. He and the others then disappeared. He was arrested and he admitted damaging the glass under caution. The cost of the damage was $70.

These facts were admitted by the Appellant. In mitigation he said he was serving a community work sentence at the Police Prosecution Office and lived with his parents at Vatuwaqa. He was educated to Class 7 level. The court assumed that the offence for which he was serving community work was subsequent to the offence before her. She disregarded it. She then placed him on probation for 2 years. Sentence was delivered on the 23rd of April 2004.

On the 14th of April 2005, he reappeared before the learned Magistrate for breach of his probation order. The Probation Officer told the court that he had stopped co-operating with her after several months. The learned Magistrate cancelled the order and substituted it with 6 months imprisonment.

The Appellant says that the sentence is harsh and excessive and wrong in principle. I do not agree. The Appellant has shown a regrettable disregard for the law and committed an offence whilst on probation. Although the 6 month sentence was imposed after the Appellant had served one year in probation, he appears to have been in breach of the probation order after only a few months. He did not appear for counselling. He did not co-operate with the probation officer. Unfortunately a copy of the probation officer’s report is not on the record nor on the court file. I do not have details of the Appellant’s non-compliance of the Order.

However, the Appellant has been offending since August 2000. He received non-custodial sentences until this case and it is apparent that the patience of the courts has run out. Imprisonment may be the only way to impress upon the Appellant that he must take responsibility for breaking the law, and must be punished for it. The substitution of the 6 month term of imprisonment under section 5(2)(a) of the Probation of Offenders Act Cap 22. The 6 month term is not excessive given the manner of offending, the damage done and the involvement of a group of youths.

In relation to HAA0071 of 2005, both sentences were within the respective tariffs for trespass and larceny. If the Appellant had been a first offender, and had he acted alone, a suspension of sentence could have been considered. However, in the circumstances of the case, the total of 12 months imprisonment is not excessive. Nor is the total of 18 months imprisonment wrong in principle or excessive in total. The two files deal with entirely different incidents separated by almost two years. The learned Magistrate did not err in sentencing the Appellant.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd August 2005