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Mociu v State [2011] FJHC 430; HAM113.2011 (12 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAM 113 OF 2011

BETWEEN:

SAILASA MOCIU
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms I. Whippy for the Respondent

Date of Hearing : 09 August 2011
Date of Judgment: 12 August 2011

JUDGMENT
[Appeal: Theft]
_________________________

[1] On the 21st December 2010, this appellant was charged in the Magistrates' Court at Nadi with one count of theft of a bull (livestock) contrary to section 291 of the Crimes Decree, 2009. After several appearances, he entered a plea of guilty on 13th April 2011 and was convicted after admitting a set of relevant facts.

[2] The accused was sentenced to a term of 24 months' imprisonment with a minimum term before parole of 18 months.

[3] The facts of the case were that sometime during the night of 18 to 19 December 2010, a bull valued at $1250 was stolen from the small farm of another at Logi, Nadi. A group of villagers searched the area on horseback and found the bull, slaughtered in the bush. The meat obtained from the slaughter was recovered and returned back to the complainant. The accused was later arrested and interviewed under caution, when he said that he stole the bull to obtain money for his Christmas expenses.

[4] The appellant appeals the sentence on the grounds that his plea of guilty was not taken into account, and that his restitution of $2,000 to the farmer was not considered.

[5] In his sentence, the learned Magistrate found that the aggravating features in this case were that he had "stolen a poor farmer's bull and slaughtered and total lack of respect towards property rights of others". His mitigating features were that he is 35 years old, married with children, a family to look after and payment of "$200" to the victim for compensation. The Magistrate took a starting point of 3 years because he said that theft of cattle was too prevalent in the Logi area. He deducted one year for the guilty plea and for the act of compensation and a further 4 months for time spent on remand making an interim total of 20 months' imprisonment. He added 4 months for aggravating features bringing the final sentence to 24 months, fixing a 12 month non-parole sentence. The Magistrate then for some reason recited the accused previous convictions which are numerous and similar and then concluded "sentence to 24 months' imprisonment and you will serve 18 months of that without being eligible for parole".

Analysis

[6] The new offence of "theft" under the Crimes Decree can be equated to the old offence of larceny and sentences passed thereunder correlated with sentences for theft.

[7] While sentences for theft can have an enormous range depending on circumstances, sentences for larceny of cattle under the old Penal Code have been well defined. In Leone Naivi (2004) HAA 91/04, Connors J. held that a sentence of 2 years for a ringleader who stole and slaughtered a cow, and who had 2 previous convictions was justified.

[8] The Magistrate was perfectly justified in this case by taking an enhanced starting point, given that the theft of cattle in the Logi district is prevalent. Stiff sentences may be seen to be a deterrent to other would be "rustlers".

[9] However the Magistrate fell into error unfortunately by his finding of aggravating features. Every theft shows a lack of respect towards the property rights of others, and it cannot be said on a charge of theft of a bull that it is aggravating that he stole a farmer's bull. It may be perhaps that the only legitimate aggravating feature is that the rightful owner of the bull is poor and would suffer the loss more keenly, but this is balanced by the payment of compensation to the farmer and the restitution to him of the raw meat taken from the animal.

[10] The aggravating features found by the Magistrate are inappropriate and cannot be used to the prejudice of the appellant. The four months added to the sentence must be deducted, leaving a total term to be served of twenty months.

[11] It is quite apparent that the Magistrate allowed discount for the guilty plea, and he also took into account the restitution made, be it $200 or $2,000.

[12] In the course of his sentence, the Magistrate stipulated two different minimum terms. In the narrative of his sentence, he fixed the non-parole period to be twelve months; at the conclusion he fixed the non-parole term to be 18 months. The benefit of this error must be given to the appellant and therefore the non-parole minimum term will be twelve months.

[13] The appeal succeeds to this extent: the sentence passed below is quashed and a new sentence of twenty months' imprisonment is imposed. The appellant will serve a minimum term of twelve months before being eligible for parole.

Paul K. Madigan
JUDGE
At Lautoka
12 August 2011