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Lawakula v State [2010] FJHC 388; HAA037.2010 (10 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA37 of 2010

BETWEEN:

SALACIELI LAWAKULA
Appellant

AND:

THE STATE
Respondent

Hearing: 3rd September 2010
Judgment: 10th September 2010

Counsel: Appellant in person
Mr. P. Katia for State

JUDGMENT

[1] This is an appeal against sentence imposed in the Magistrates' Court at Suva for an offence of theft contrary to section 291 of the Crimes Decree 2009. The offence of theft carries a maximum penalty of 10 years imprisonment. The appellant was sentenced to 12 months imprisonment.

[2] The appeal is founded on numerous grounds. Only one ground has merit. The appellant contends that the learned Magistrate took irrelevant factors into account as aggravating factors to enhance the sentence. The State concedes this ground of appeal.

[3] The nature of theft committed by the appellant is shoplifting. The appellant stole a shaving gear and cartridge of Gillette brand valued at $116.95 from Morris Hedstrom City Centre. The appellant was caught by a security officer when he walked passed the cashier counter without paying and with the stolen items in his bag. Under caution, the appellant admitted the theft.

[4] In her sentencing remarks, the learned Magistrate used the tariff for simple larceny under the Penal Code, after citing cases such as Ronald Vikash Singh v. State HAA0035/2002; Josevata Taucilagi v. State Crim. App. HAA0096 of 2002S; Kaloumaira v. State HAA020.2008; Manasa Lesuma v. State HAA0106.2004; Tikoitoga v. State HAM088.2007; Vaniqi v. State HAA080.2008; and State v. Chaudary HAC69.2007, 70.2007 & 71.2007. The tariff is 2 to 12 months imprisonment. The learned Magistrate picked 12 months imprisonment as her starting point. To the starting point, she added 6 months to reflect the aggravating factors and reduced by 6 months to reflect the early guilty plea.

[5] The appellant had previous convictions for similar offences. He was a matured man. The learned Magistrate quite properly considered that the appellant was not entitled to any discount for previous good character. The early guilty plea was the only mitigating factor and the discount of 6 months was appropriate.

[6] However, when considering the aggravating factors the learned Magistrate said:

"According to the Summary of Facts, you had stolen the items which reflect your intention to steal.

You had taken the items, without paying and had put them in your own bag when the complainant had approached you.

In view of the above, I increase your sentence by another 06 months, and the period of imprisonment is now 18 months."

[7] The State, quite properly, in my view, concedes that the learned Magistrate erred in taking into account these factors to enhance the sentence.

[8] Counsel for the State submits that "these were elements of the offence, conviction of which has resulted in the given sentence. Aggravating factors are circumstances that make the offending worse."

[9] I accept these submissions of the State. The learned Magistrate clearly erred in treating the elements of the offence of theft as a matter of aggravation to enhance the sentence by 6 months.

[10] In fact, there was no aggravating factor present in this case and the sentence should not have been enhanced to reflect any aggravating factor.

[11] For these reasons, I allow the appeal. The sentence is reduced to 6 months imprisonment.

Daniel Goundar
JUDGE

At Suva
10th September 2010

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State