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Allen v State [2010] FJHC 72; HAA003.2010 (4 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAA003 OF 2010
CRIMINAL CASE NO: 936 OF 2009

BETWEEN:

RICHARD ALLEN
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - In person
Respondent - Ms. Hamza S [DPP]

Date of Hearing: 18th February, 2010.
Date of Judgment: 4th March, 2010.

JUDGMENT

[1] The appellant in this case was charged for the offence of Burglary in the Magistrates Court Nasinu and on his own plea of guilty he was convicted and sentenced to 2 years imprisonment. This appeal is filed against that sentence.

[2] The facts of the case are on 4th April 2009 at about 16.00hrs PW1 securely locked her house and left for her parents house. On 6th April 2009 when she returned by 17.30hrs her household items to a total value of $1888.00 were missing. These items include a TV, iron, ladies wrist watch, gold chain with pendant, a gold ring and a diamond ring.

Accused was interviewed under caution and accused appellant admitted to the offence committed. Only part of the items stolen to the value of $689.oo were recovered.

[3] The appellant contends that the Learned Magistrate has not considered the mitigating circumstances and therefore the punishment imposed is harsh and excessive. Further he states that he has taken a personal undertaking not to re-offend.

[4] The Learned Magistrate in his sentencing judgment has carefully considered all the mitigating circumstances mentioned on behalf of the appellant in the magistrate court.

He has considered the summary of facts, all mitigatory circumstances and the fact that the appellant pleaded guilty when imposing the sentence.

[5] On this Counsel for the Respondent contends that in the circumstances the sentence imposed is not harsh and excessive but it is rather lenient.

[6] The appellant has 7 previous convictions.

[7] In the case of Lasaro Tuberi v State Criminal Appeal No. HAA 116 of 2006 it was held that the sentence of 3 years imprisonment for the offence of burglary was correct in principle. Also in Lorosio Vulaca v State Criminal Appeal No. HAA 31 of 2007 the appellant appealed against the sentence of 3 years for the same offence and it was held that 3 years was correct and fair. Further in Viliame Gukisuva v State Criminal Appeal No.HAA 117 of 2007 it was held that for this offence 18 months sentence was lenient.

[8] In the circumstances of this case the Learned Magistrate has considered all the mitigatory circumstance when imposing the sentence and I find that the sentence is not harsh and excessive but lenient. Hence the appeal is dismissed.

[9] Now this court will consider whether the sentence imposed by the Learned Magistrate is too lenient and whether it is not adequate. It was urged by the Counsel for Respondent that the sentence is lenient.

If a person is found guilty of the offence of burglary, he is liable to be imprisoned for life. This shows how seriously the legislature has considered this offence.

In Lasaro Tuberi v State (Supra) Justice Shameem said that "Breaking into private houses is not only dishonest and unlawful. It is an invasion of privacy, from which many home-owners never recover". This is a prevalent offence in Fiji and deterrent sentence is warranted. The appellant has 7 previous convictions and he has not made an effort to correct himself. Only part of the stolen items were recovered. On the aforementioned circumstances I find the 2 years sentence imposed by the Learned Magistrate is too lenient and not adequate.

The appellant was given an opportunity to show cause why the sentence should not enhanced in appeal. In that he said all items he stole was recovered and he was not the only person who robbed and there was another person with him. The accused appellant has pleaded guilty to the charges and admitted the summary of facts. Only part of the items were recovered. This cannot be considered as good cause to not to enhance the sentence imposed.

On repeat offenders Winter J made following observations in case Viliame Cavuilagi v State Criminal Appeal No. HAA 0031 of 2004:

"Repetitive recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three society’s needs. Firstly it might act as a deterrent to the offender and others who fall into pattern of semi-professional crime to support themselves. Second: society is entitle to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Third: offenders deserve punishment that fits the circumstances of the crime".

[10] Considering the above I take 3 years of imprisonment as the starting point and add another 2 years for the aggravating factors mentioned above and by the Learned Magistrate. I further deduct 2 years for all the mitigating circumstances and the early plea of guilty.

[11] Result

The appellant is sentenced to 3 years imprisonment and thereby his sentence is enhanced from 2 years to 3 years imprisonment.

Priyantha Fernando
Puisne Judge

04/03/2010