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Baleiwai v State [2011] FJHC 261; HAA009.2011 (12 May 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA009 of 2011

BETWEEN:

ATUNAISA BALEIWAI
Appellant

AND:

THE STATE
Respondent

Hearing: 20 April 2011
Judgment: 12 May 2011

Counsel: Appellant in person
Mr. T. Ravuniwa for State

JUDGMENT

[1] The appellant pleaded guilty to 9 counts of burglary and 8 counts of theft in the Magistrates' Court at Labasa. On two counts of theft, he was sentenced to 24 months imprisonment. On the remaining counts, he was sentenced to 12 months imprisonment. Some sentences were made concurrent and some were made consecutive. The total sentence imposed on the appellant was 5 years imprisonment with a non-parole period of 4 years to serve.

[2] The appeal is against sentence on the grounds that:

1. The learned Magistrate failed to take into account that the stolen items were either fully or partly recovered.

2. The learned Magistrate failed to give ⅓ discount for early guilty pleas.

3. The learned Magistrate erred in considering the fact that the victims' homes were unoccupied at the time of the offences as an aggravating factor.

4. The sentence is harsh and excessive.

Recovery of stolen items

[3] The appellant broke into eight separate homes and stole items of substantial value. In his sentencing remarks the learned Magistrate considered the items that were recovered as a result of information provided to the police by the appellant.

[4] In one case all the stolen items were recovered, in five cases there were partial recovery of the stolen items and in two cases none of the stolen items were recovered.

[5] In these circumstances, any reduction in sentence arising from the recovered stolen items was offset by the unrecovered stolen items.

[6] In any event, the learned Magistrate considered the cooperation with the police as a mitigating factor to reduce the sentence. This ground fails.

Discount for guilty pleas

[7] For each count, the learned Magistrate picked 18 months imprisonment as his starting point. He increased the sentence to 24 months to reflect the aggravating factors and reduced 6 months for the guilty plea and 6 months for personal circumstances.

[8] In my judgment the appellant was not entitled to any reduction in sentence for personal circumstances. He was 32 years old and married with a 2 month old son. In mitigation he said he committed the offences because he was unemployed. None of these factors operated as mitigating factors to justify a reduction of sentence by 6 months. In this regard the appellant was fortunate to have his sentence reduced for factors that did not operate as mitigating factors. The only mitigating factors were the appellant's guilty pleas and cooperation with the police.

[9] A total reduction of 12 months for mitigating factors including the guilty pleas is a substantial reduction in the sentence. This ground fails.

Aggravating factors

[10] Under this ground, the appellant submits that the learned Magistrate erred in considering the fact that the victims' homes were vacant at the time of the burglaries as an aggravating factor to enhance the sentence.

[11] All eight victims were civil servants occupying government quarters. In his sentencing remarks, the learned Magistrate stated that the appellant had planned the burglaries. The learned Magistrate found that the appellant deliberately targeted the government quarters because he knew the occupants would be at work.

[12] The learned Magistrate considered the planning involved in the commission of the burglaries as an aggravating factor and not the fact that the homes were vacant at the time of the burglaries to enhance the sentence. This ground fails.

Severity of sentence

[13] When an offender is sentenced for a number of offences, the court must look at the total criminality involved and impose a sentence that fairly reflects the total criminality involved.

[14] Within a span of three months, the appellant burgled eight homes. It appears that he had not learnt from his past sentences. He has a total of nine previous convictions, mostly for burglary. His last conviction was in 2007 for which he received a suspended sentence. Shortly after his suspended sentence expired, he committed these burglaries.

[15] Burglary of homes is a very serious form of violation of privacy. The courts take a very serious view to these types of offences.

[16] The appellant is a recidivist. The public must be protected from him.

[17] A total sentence of 5 years imprisonment for burglary committed on eight homes, in my judgment, reflects the total criminality involved. The sentence is not harsh or excessive.

[18] The appeal against sentence is dismissed.

Daniel Goundar
JUDGE

At Labasa
12 May 2011

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