Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Serukalou v State [2010] FJHC 491; HAA042.2010 (4 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 042 OF 2010

BETWEEN:

TIMOCI SERUKALOU
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - In Person
Respondent- Ms. Koto, L.

Date of Hearing: 13/10 – 21/10/2010.

Date of Judgment: 4th November, 2010.

JUDGMENT

Appellant was charged and after Trial convicted for the following offence, by the Magistrate Court Suva on 31/05/2010.

Statement of Offence (a)

Larceny: Contrary to Section 259 and 262 of the Penal Code Act 17.

Particulars of offence (b)

TIMOCI SERUKALOU on 27th January, 2010 at Suva in the Central Division, stole a handbag containing mobile phone & Charger, Eastytel card and 2 x Flash Drive to the total value of $244.00, the property of Mereoni Bainitabua.

After conviction he was sentenced to 46 months imprisonment. Appellant now appeals against the said conviction and sentence.

The grounds of Appeal are as follows:

(i) That the trial Magistrate erred in law when he failed to judiciously investigate why I had not been served my disclosures documents which were vital for making my defense in the case;

(ii) That there were no proper identification parades conducted by Police to properly ascertain the offender;

(iii) That there was insufficient evidence to convict in my case;

(iv) That there has been a grave miscarriage of justice in my case where the Police and the trial Magistrate may have only taken advantage of my previous convictions in this case which I had not pleaded guilty to;

(v) That the trial Magistrate erred in law with regards to the starting point of sentencing he had chosen;

(vi) That the trial Magistrate erred in law when he at para 9 of the sentencing judgment referred to the above facts as aggravating factors' which is inclusive of my previous convictions already dealt with by the courts; and,

(vii)That the sentence ordered by the court is too harsh and excessive.

Facts of the case are that on 27/1/2010 afternoon, the PW1 was at High Court No.2 with her son waiting for the sentencing of her husbands' case. Son wanted to play with her phone. When the case was mentioned in court she had gone inside the courtroom, leaving her son sitting on a bench outside the courtroom with her handbag. Her mobile phone had been in the said handbag. Accused had been sitting with her son. When she came out of the courtroom she saw her son crying and the handbag was missing. Accused too had been missing.

Next morning when she was going to work she saw the accused, the person who was sitting with her son the previous day outside court, at Salvation Army building. She got off from the bus and informed a rugby player. Then accused started to run. Then all rugby players ran and caught him. The mobile phone had been there with the accused.

On 30/1/2010 and on 2/2/2010 the court record shows that full set of disclosures were handed over to accused. Therefore appeal ground No.1 should necessarily fail.

The Appellant was positively identified by the complainant (PW1) as the person who was sitting outside court with her son, and who was missing when she came out. Next date then and there the rugby players arrested the accused on the complainants' information in front of her. The mobile phone was found in the accused possession at the time the accused was caught by the rugby players. The learned Magistrate rejected the evidence of the accused, that the accused bought the phone from somebody else. Accused didn't know from whom he bought the phone, although he said that he was a bona fide buyer. Therefore there was sufficient evidence to prove beyond reasonable doubt that the accused committed the offence, and the learned Magistrate has given good and sufficient reasons for her finding.

Therefore I find that grounds 2, 3 and 4 are without merit.

Grounds 5, 6 and 7 are on the sentence.

The tariff for the offence of Larceny is 12 months – 18 months (Peniasi Saulekaleka v The State HAA 0050 of 2001S).

The learned Magistrate has taken 36 months as the starting point in her sentencing judgment. The reasons given by the learned Magistrate to choose the starting point well above the normal tariff is, that the accused is a repeat offender and has 68 previous convictions. State concedes that it is against the sentencing principles and ground of appeal No.5 has merit.

In case of Vetaia Waqalevu v The State Crim. App. No.44 of 2010 where the Magistrate has taken into account the previous convictions of accused, as a factor to enhance the sentence, Justice Goundar said:

"It is settled Law that an offender should not be sentenced twice for the same offence. Therefore, it follows that when an offender is sentenced for a new offence, his previous convictions have limited relevance. An offender's previous convictions deprive him of any discount based on previous good character. Previous convictions cannot be used as a matter of aggravation to enhance the sentence for the new offence. To do so will be punishing the offender twice for the same offence".

Therefore as conceded by State (Respondent), I find that the learned Magistrate erred in Law when she considered the Appellants' previous convictions to enhance the starting point beyond the established tariff.

Considering the nature of the offence I start with a sentence of 15 months of imprisonment.

The aggravating factors are that the Appellant took advantage of the situation, when the complainant had to go inside the courtroom leaving her handbag with the child.

Considering the aggravating factors I add a term of 2 years imprisonment.

In mitigation Appellant said that he is 35 years old, farmer by profession, single, asks for forgiveness and promise not to reoffend.

I further consider that out of the items stolen the mobile phone was recovered from the possession of the Appellant.

I reduced the sentence by 3 months taking the mitigating factors into account.

As Appellant has previous convictions he is not entitled to a discount on good behavior.

Therefore, finally Appellant is sentenced to 3 years imprisonment. I fix a non-parole period of 2 years imprisonment.

Appeal is allowed to the above extent.

Priyantha Fernando
Puisne Judge

At Suva
04th November, 2010.