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Naqamu v State [2008] FJHC 10; HAA 123.2007 (1 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 123 of 2007

Between:

APISAI NAQAMU

And

ATONIO NAUSU
Appellants

And

THE STATE
Respondent

Hearing: 18th and 25th January 2008
Judgment: 1st February 2008

Counsel: Appellants in person
Ms A. Tuiketei for State

JUDGMENT

The Appellants appeal against their convictions and sentences. Their grounds are that they were not represented by counsel and their rights to a fair trial were thereby prejudiced, they were put under pressure to plead guilty, and their sentences are harsh and excessive. They were sentenced to a total term of 2 years, 11 months (the 1st Appellant) and 3 years and 1 month (the 2nd Appellant) imprisonment.

Case No. 169/07

They were charged jointly with unlawful use of a punt, larceny of outboard engines on two counts and damaging a punt on one count.

The matter was first called in the Navua Magistrates’ Court on 25th July 2007. The learned Magistrate explained the nature of the proceeds the charges and the right counsel to the Appellants. They pleaded guilty on all counts. The facts were read. They were that between the 11th and 12th of June 2006 at Wainividio, Navua, the Appellants unlawfully used a punt belonging to one Epeli Qaqa, a fisherman and loaded two outboard engines into it. One belonged to Farook Mohammed Hassan, and the other to Semesi Dunn. The engines were worth $2,600 and $1,500 respectively. They took the engines away to Wainiveivatu Naimelimeli where they dismantled the punt and where they sold the engines. Both engines and the pieces of dismantled punt were later recovered. They were both arrested and interviewed under caution. They admitted the offences.

Both Appellants admitted the facts and were convicted. The 1st Appellant was treated as a first offender on the basis that his last previous convictions were dated 1988. The 2nd Appellant admitted one previous conviction. In mitigation the 1st Appellant expressed remorse, said he had committed the offence because he needed money, was 44 years old and asked for a non-custodial sentence. The 2nd Appellant said he was 27 years old, was single and a farmer and expressed remorse.

Sentence was delivered on 8th August 2007. In her reasoned remarks she identified starting points within the tariffs on each count, adjusted for aggravating and mitigating circumstances and sentenced as follows:

Appellant 1

Appellant 2

The sentences were to be served consecutively.

Case No. 171/07

The facts in this case were similar. On the 19th of July 2007 the Appellants stole two outboard engines and loaded them onto the punt of Mikaele Gukibau a fisherman. The engines were valued at $4,200 and $4,000. They set fire to the punt and destroyed it.

The learned Magistrate took into account aggravating and mitigating circumstances and sentenced as follows:

Appellant 1

Appellant 2

These sentences were to be served concurrently.

Criminal Case 170/07

In this case, the 2nd Appellant was charged alone. He was charged with unlawful use of punt on two counts and larceny of outboard engine. The facts were that between the 13th and 14th days of July 2007, he went to Naitonitoni beach where he saw a boat anchored. He took the punt, unloaded the engine into another punt and then unloaded both engines at Wainivatulevu creek. The two punts and outboard engine were recovered.

In this case the learned Magistrate sentenced the 2nd Appellant to 4 months imprisonment on each count of unlawful use of punt, and 10 months imprisonment for larceny of the engine. These sentences were to be served concurrently. In the course of her sentencing remarks she referred to the effect of the thefts on the small community at Navua and said that the two men went on a "law-breaking spree."

At the hearing of the appeal, the Appellants said they wished to appeal only against their sentences. A perusal of the court record shows that the charges were carefully explained to them and that they waived their right to counsel. They accepted the facts which disclosed the offences. They were rightly convicted.

State counsel in her submissions opposed the appeal. She said that although the 1st Appellant was treated as a first offender, he in fact had a conviction in 2003. The 2nd Appellant had one previous conviction in 2006. The Appellants accepted this. The updated list of previous convictions for the 1st Appellant including the 2003 conviction had not been given to the learned sentencing Magistrate.

The approach to sentencing in this case was principled and fair. All sentences passed were within the tariff and only the sentences on Case 169/07 were to be served consecutively. The totality of the sentences are, if anything, lenient, given the serious effects of stealing boats and engines in a fishing community. Two of the punts were damaged and destroyed. That meant the loss of livelihood. These were not petty offences and the conduct of both Appellants called for deterrent custodial sentences.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
1st February 2008