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Betu v State [2008] FJHC 314; HAA58.2008 (11 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 58 of 2008

BETWEEN:

EMOSI BETU
Appellant

AND:

STATE
Respondent

Date of Hearing: 3rd November 2008
Date of Judgment: 11th November 2008

Appellant appeared in person
Mr. Savou for the Respondent/State

JUDGMENT

1. This is an appeal against sentence.
   

2. The facts of this case are that on 16 May 2008, the Appellant approached the complainant while he was walking home from work and asked him if he had anything in his pocket. The complainant soon became frightened as the Appellant was drunk. He said that he had a mobile phone. The Appellant forcefully removed the phone from the complainants pocket and threatened him not to tell the police.

3. After a short investigation, the Appellant was arrested and admitted the offence for which he was later charged.

4. On 27 August, 2008 the Appellant was sentenced in the First Class Magistrates Court at Rakiraki (Western Division) to 19 ½ months imprisonment after pleading guilty to 1 charge of Larceny, contrary to Section 271 of the Penal Code, CAP 17.
   
5. The Charge reads as follows:-
   

LARCENY FROM PERSON: Contrary to Section 271 of Penal Code, Cap. 17.

Particulars of Offence (b)

EMOSI BETU, on the 16th day of May, 2008 at Mullau, Rakiraki in the Western Division, stole a Mobile Phone valued at $190.00 from the person of IFRAN IMRAL ALI s/o MOHAMMED ALI.

6. The Appellants criminal record shows that from 1984 to the present, he has been convicted on at least 16 occasions of various dishonesty offences.
   
7. In sentencing, the learned Magistrate took a starting point of 24 months imprisonment as this was not the Appellant’s first offence. As reconciliation had been made with the victim, and the stolen item returned, a 5 month discount was given. However, a further 3 months was added to reflect the Applicants poor criminal record. The balance of 22 Months was then discounted by 1/10 to reflect the Appellants plea of guilt. This resulted in a sentence of imprisonment of 19 ½ months.
   
8. In support of his appeal, the Appellant says that the sentence was excessive, and that he has reconciled with the victim. He asked that his sentence be suspended, or that he be bound over.
   
9. In reply, the State says that it concedes the Appeal against sentence, and referred me to the judgment of Talau v The State [2005] FJHC 212; HAA0078J.2005 ( 5 May 2005) (per Shameem J ) where the court said:
   

"The English authorities, as I said in the case of Poniasi Saulekaleka v. The State HAA0050 of 2001S, suggest that there is a tariff of 12 to 18 months imprisonment."

As the Accused in that case was not a first time offender, it went on to say:

"Given his record of offending in a similar way, there can be no question of suspension".

10. The State also says that would be inappropriate for the Applicant to be bound over in this case, and I accept this.

11. Having considered the submissions of the Appellant and the State, I find that the learned Magistrate erred in passing a sentence which was outside of the established tariff.
    
12. I take a starting point of 18 months. For the factor of reconciliation and the item being recovered, 1 month is discounted.
    
13. The Appellant’s last conviction was in 2007. At the time of the offence, the complainant was simply walking home from work. I find the fact that he was subjected to this incident intolerable, and particularly aggravating. I therefore add a further 4 months.
    
14. The sentence now stands at 21 months, which will be further discounted by 1/3 for his plea of guilty. Given the Appellants long record of offending in a similar way, a suspended sentence in unavailable. I also accept the States opposition to the Appellant’s request that he be bound over.
    
15. This appeal is allowed. I quash the 19 ½ month term of imprisonment and substitute it with a term of 14 months imprisonment to run from the 27 August 2008.
    

Anthony J Sherry
Judge

Lautoka
11th November 2008.