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Sokia v State [2010] FJHC 91; HAA007.2010 (23 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. App. Nos: HAA 07/10 & HAA 012/10
HAM 02/10

Between:

ILAITIA SOKIA
Appellant

And:

THE STATE
Respondent

Hearing: 12th March 2010
Judgment: 23rd March 2010

Counsel: Appellant in person
Mr. W. Tabuya for State

JUDGMENT

[1] The appellant appeals against a total sentence of nine years imprisonment imposed on him after he pleaded guilty in the Magistrates’ Court in two separate files.

[2] In Case No. 1328/09, he was sentenced as follows:

Count 1: Office Breaking Entering and Larceny – 1 year imprisonment.

Count 2: Office Breaking Entering and Larceny – 2 years imprisonment.

Count 3: Office Breaking Entering and Larceny – 3 years imprisonment.

[3] The sentences were ordered to be served consecutively, making a total sentence of 6 years imprisonment. The facts in this case were that he together with others broke into three different rooms within the same premises of a school and stole a range of electronic and sporting equipments to a total value of more than $3000.00. None of the stolen item was recovered.

[4] The three co-accused persons who also pleaded guilty, the sentences were suspended due to their young age and previous good character.

[5] After imposing the imprisonment sentences, the learned Magistrate, for reasons not recorded, discharged the offenders under section 44 of the Penal Code.

[6] In Case No. 1334/09, the appellant was sentenced to 3 years imprisonment for shop breaking entering and larceny to a total value of $5963.00, to be served consecutively with the total sentence of 6 years imprisonment imposed in the earlier case. Only two mobile phones were recovered. His co-accused was sentenced to a suspended term of imprisonment due to his young age and previous good character. The offenders were also discharged in this case for reasons not recorded.

[7] The total sentence that was imposed on the appellant was 9 years imprisonment, while his co-offenders received suspended sentences. The appellant had been in custody for a month before the sentence was imposed but this was not taken into account. The appellant quite correctly points out that the time spent in custody should have been taken into account.

[8] The appellant had three previous convictions. One was for robbery with violence for which he was sentenced to a suspended term of imprisonment in 2005. He committed the offences shortly after he had served his suspended sentence. He therefore was not entitled to any reduction in sentence for previous good character. The only compelling mitigating factor was his guilty pleas. In mitigation, he said he was 24 years old and unemployed.

[9] The tariff for breaking and entering offences is between 18 months to 3 years imprisonment. Terms at the lower end of the tariff are reserved for petty offences, offenders who play only a marginal role and for young offenders. Suspension of sentences should only be considered for the young first offender.

[10] These guidelines are well established in Tomasi Turuturuvesi v. State Criminal Appeal HAA 86/2002S, Mesake Ratabua v. State Criminal Appeal HAA026 of 2004S and Dravere Ledua v. State Criminal Appeal HAA014 of 2002.

[11] When a court is sentencing an offender on a number of offences, the court should impose a term of imprisonment for each offence within the established range. After imposing the individual sentences, the court should consider whether the sentences should be made concurrent or consecutive. When considering this issue, the court should bear in mind the totality principle, that is, whether the fact of accumulation will have a crushing effect on the offender and take away any prospect of reform.

[12] The court may order the sentences to be served consecutively if satisfied that the overall sentence, including the fact of accumulation, properly reflects the totality of the criminality involved (Pauliasi Bote v. The State Criminal Appeal No. AAU0011 of 2005).

[13] In the present case, the learned Magistrate did not direct her mind to any of these principles, thereby constituting an error of law, justifying this Court’s intervention to quash the sentences imposed on the appellant in the Magistrates’ Court. I sentence the appellant de novo.

[14] For each offence of breaking entering and larceny, I pick 2 years as my starting point. The offences were planned and committed in a group. The victims’ premises were damaged in the course of the offences. Substantial stolen items have not been recovered. No attempt has been made to compensate the victims for the loss they have suffered. These are the aggravating factors.

[15] The only compelling mitigating factor is the early guilty pleas of the appellant. Also, he had spent a month in custody before he was sentenced.

[16] After adjusting for these factors, I sentence the appellant to two years imprisonment for each offence of breaking entering and larceny. I do not think the sentence should be suspended. The appellant is not a young first offender. However, I consider it would be appropriate to order the sentences to be served concurrently in hope that the appellant will reform himself.

[17] For each offence of breaking entering and larceny, the appellant is sentenced to 2 years imprisonment, to be served concurrently effective from 3 November 2009.

[18] The discharge order made by the learned Magistrate is clearly erroneous. Once an offender is sentenced to an imprisonment sentence, he could not be discharged under section 44 of the Penal Code. The discharge order is quashed.

[19] The appeal against sentence is allowed.

Daniel Goundar
JUDGE

At Suva
23rd March 2010

Solicitors:
Appellant in person
Office of the DPP for State