IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NOS.: HAA00124, 125 & 154 OF 2005

BETWEEN:

SIRELI TANIELA
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. N. Nand – for State

Date of Hearing/Ruling: 18th November, 2005

EXTEMPORÉ RULING

This is an Extemporé Ruling given at the end of a short sentencing appeal. As such I reserve the right to perfect the judgment once it has been prepared for me.

Background

This appellant faced three charges. They are:

1.	A charge of larceny involving a theft of a substantial amount of fish.
2.	A charge of theft involving an outboard motor and some fuel.
3.	A charge of aggravated wounding.

In respect of each of these charges he eventually pleaded guilty and was sentenced on the 1st of July, 2005 in the Lautoka Magistrates’ Court.

He was at that time a serving prisoner.

The sentences in respect of the fish larceny and outboard motor charges were both separately 12 months imprisonment but declared concurrent. In respect of the aggravated wounding charge the sentence was 6 months imprisonment but declared to be consecutive with both the serving terms and the terms imposed in respect of the other two charges.

The Appeal

The appellant elected to represent himself before me and was quite adequately able to describe the circumstances surrounding his appeal.

In respect of the fish larceny and outboard matters what he had hoped to achieve was that both of those terms would be concurrent not only with each other but with his serving term.

He had endeavoured to impress that upon the learned Magistrate prior to his sentencing but he said he believed she did not understand that that was what he was seeking.

I took the opportunity of explaining to him that, in my view, a sentence of 12 months imprisonment separately imposed on both of those matters was not unduly harsh or manifestly excessive nor wrong in principle. I indicated to him that the learned Magistrate had been generous in making those terms concurrent with each other.

Having heard that explanation Sireli accepted it and did not really push that aspect of the appeal further.

In respect of the aggravated wounding charged contained in Appeal File No. HAA0154.2005 his main point on appeal is that he reconciled with the complainant.

He said that when he appeared before the learned Magistrate he produced a letter confirming that.

He had the letter with him again today and I read it.

However, in addition the complainant had taken the trouble to attend court today to support the appellant at his appeal.

I have read the appeal file and notes which contained both the summary and the statements taken relating to the matter. Although this was a charge under Section 224 of the Penal Code and thus on its face one of acting with intent to cause grievous harm it nonetheless was a matter that, in my view, did not deserve that kind of charge being laid as the circumstances and result of the contact between the complainant and the appellant were more in the nature of a common assault.

I explained again to the appellant that in terms of Section 163 of the Criminal Procedure Code offences under Section 224 were not reconcilable. He accepts that but he presses the matter further by urging me to consider the victim’s letter and appearance in court to be a powerful and persuasive mitigation in his favour.

The State in reply firstly apprehend that the appellant is not pursuing his appeal on the fish larceny and outboard case with any great vigour.

In the light of that responsible attitude towards his appeal the State then turned to consider the aggravated wounding charge and in respect of that matter observe that while offences under Section 224 of the Penal Code are not strictly reconcilable that nonetheless State accepts that it is a powerful mitigation for a victim and an accused to reconcile and an even more powerful demonstration of that reconciliation for the victim to appear in court in support of the appellant’s appeal.

Decision

I do not find the sentences imposed in Appeal No. HAA0124.2005 (the outboard motor) and HAA0125.2005 (the fish larceny) to be manifestly excessive and unduly harsh or wrong in principle.

In my view, bearing in mind the previous conviction history of the appellant if he had been appearing in the High Court these sentences for quite separate charges would have been made consecutive not concurrent and accordingly I dismiss the appeals in the sentencing appeals in respect of those matters.

However, in respect of the aggravated wounding charge described on Appeal No. HAA0154 of 2005 I am impressed by the fact that the victim has taken trouble to appear in Court today personally in support of the appellant’s appeal.

Reconciliation demonstrated in that way rings true. The learned Magistrate only had the benefit of the receipt of a letter from the victim when she came to consider the appropriate sentence.

This had the effect of her reducing the sentence to one of 6 months imprisonment. That was a fair reflection in my view of the culpability for that offending especially bearing in mind that the offence was more one in the nature of common assault than aggravated wounding.

What the learned Magistrate did not have the benefit of was the victim appear in support of the appellant’s sentence appeal. 

I am prepared to accept that based on the totality principle the sentence is unduly harsh and accordingly in respect of Appeal No. HAA0154.2205, I maintain the sentence of 6 months imprisonment but vary it by ordering that the sentence effective from the 1st of July, 2005 is to be considered as being served concurrent both with the existing serving term and the other penalties imposed on that date.

Gerard Winter
JUDGE

At Lautoka
18th November, 2005