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Labalaba v The State [2005] FJHC 63; HAA0013J.2005S (23 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0013 of 2005S

Between:

EPELI LABALABA
Appellant

And:

THE STATE
Respondent

Hearing: 18th March 2005
Judgment: 23rd March 2005

Counsel: Appellant in Person
Ms V. Lidise for State

JUDGMENT

The Appellant was charged with the following offence:

Statement of Offence

SCHOOL BREAKING WITH INTENT TO COMMIT FELONY: Contrary to Section 302(2) of Penal Code, Act 17.

Particulars of Offence

EPELI LABALABA on the 2nd day of November, 2004 at Navua in the Central Division, broke into the Rampur College with intent to commit felony namely to steal therein.

The case was called on the 5th of November 2004, and the Appellant pleaded guilty. The facts were that he broke into the Rampur College, Navua and used a pinch bar to break a padlock in the Staff Room. When he found nothing in the Staff Room, he then ran to the canteen where he was discovered by the school manager who had come to the school because the alarm had gone off. The police then arrested him and interviewed him under caution. He admitted the offence.

These facts were admitted by the Appellant. He also admitted 15 previous convictions, largely for offences of larceny or breaking and entry offences. He has served several terms of imprisonment, the last being a 2 year term imposed for shop breaking in 2001.

It appears from the court record that he was never given time for mitigation, but sentence was delivered on the 17th of December 2004. The learned Magistrate started a 2 year imprisonment with an extra year for aggravating features and a one year discount for the guilty plea. He was sentenced to 2 years imprisonment.

He now appeals against this sentence saying that the sentence was harsh and excessive, that no weight was put on mitigating factors in particular his guilty plea. In court, he expressed remorse, saying he had elderly parents at home and that other offenders had been bound over for similar offences.

The State opposes the appeal, saying that although the starting point ought to have been 12 months imprisonment, the 2 year term was justified because of the aggravating factors. State counsel referred me to the decisions of the High Court in Joape Matiavi v. State Crim. App. No. 72 of 1990, Natalio Cili v. State Crim. App. No. 7 of 1999, John Henry Evans v. State Crim. App. 53 of 1997, and Josefa Rokuro v. State Crim. Apps. 18, 19 and 20 of 1997 which were cases of similar facts. These cases suggest that for offences of shop breaking and for burglary offences, sentences have ranged from 6 months imprisonment to 2 years imprisonment.

In this case, a starting point of 12 months imprisonment would have been appropriate. An increase to 2 years might have been justified because of the use of the pinch bar and the damage caused to the lock. Mitigating circumstances are the fact that nothing was stolen, there was an early guilty plea, and the personal circumstances of the Appellant. A sentence of 9 months imprisonment would have been correct in principle.

I consider that the 2 year term imposed was harsh and excessive and that the Appellant should have been heard in mitigation. I reduce his sentence to 9 months imprisonment. His appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
23rd March 2005