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Daunibuna v State [2007] FJHC 72; HAA114J.07S (2 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 114 of 2007

Between:

VILIAME DAUNIBUNA
Appellant

And:

THE STATE
Respondent

Hearing: 26th October 2007
Judgment: 2nd November 2007

Counsel: Appellant in person
Ms L. Lagilevu for State

JUDGMENT

The Appellant appeals against a two and a half year term of imprisonment consecutive to a previous term of three years imprisonment imposed on him by the Suva Magistrates’ Court on the 19th of July 2007. His grounds of appeal are that the total sentence is disproportionate to the offending, and that the order for the terms to be served consecutively is harsh and excessive.

He was charged with one count of larceny and one count of housebreaking, entering and larceny. It was alleged that on the 5th of May 2006 he stole the hedge cutter of Pratap Singh. On the same day he was alleged to have broken into the house of Dr. Biu Sikivou and stolen personal items valued at $875.00.

When the case was first called on the 8th of May 2006, he pleaded not guilty. He was remanded in custody. There were several adjournments to allow him to seek representation and a hearing date was set for the 13th of October 2006. He was granted bail. On the 30th of October he did not appear. This is not surprising as the date given to him on the 17th of July 2006 was the 28th of October. By the 13th of December he was a serving prisoner and no production order had been served. He was not produced until the 19th of July 2007 when he changed his plea.

The facts were that on the 5th of May 2006 at 9.35am he entered the compound of Dr. Sikivou, and left after stealing the hedge cutter belonging to a neighbour and items he stole from Dr. Sikivou’s house after breaking in. He was arrested near the scene. He still had the stolen items on him, and confessed under caution. The Appellant agreed to these facts and admitted 51 previous convictions. He was serving and was due for release in 2009.

The learned Magistrate took into account the guilty plea but said that it had not been entered at the first opportunity. He said that the Appellant was a recidivist and that most of his convictions were for home invasions. He commenced at 3½ years and reduced it to 2½ years imprisonment on Count 1, and 12 months imprisonment on Count 2. The sentences are concurrent to each other, but consecutive to the existing term being served.

There can be no doubt at all that the sentence of 2½ years for an offence of breaking and entering is within the tariff for such offences. Further, the 12 month term for the offence of larceny when the Appellant has previous convictions for larceny is entirely appropriate. Because the offences were committed on the same day, the order for concurrent terms was also appropriate. The only real issue in this appeal is whether the total term he is now serving is excessive and disproportionate.

In 2006 he was sentenced for a series of burglary and larceny offences which resulted in a 3 year term of imprisonment. The 2½ year term effectively lengthens his sentence so he will now be released in 2011.

In 2004/5 he committed a total of 12 burglary and larceny offences. In 2004, he had committed two such offences. In 2006 he committed further such offences. He is clearly a habitual offender who has learnt nothing from his terms of imprisonment. People who make a living from breaking into the homes of others cannot expect leniency. Whether or not statistics show an increase in such crimes, offenders cannot commit home invasion offences with impunity. The order that the sentences be served consecutively was correct in principle and does not offend the totality principle.

This appeal is dismissed.

Nazhat Shameem

JUDGE
At Suva
2nd November 2007