IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAM 016/2012

BETWEEN:

LAISIASA RAMAQA
1st Appellant

LIVAI RAVONOKULA
2nd Appellant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Appellants both in Person
Ms M. Fong for the State 

Date of Hearing: 17th July 2012

Date of Judgment: 25th July 2012

JUDGMENT

1.	In the Magistrates' Court at Labasa on the 13th April 2011 each of these appellants was convicted on his own unequivocal plea of theft of 2 bottles of "Koffina" (dried coffee granules) of a total value of $33.78.

2.	They were each sentenced to twelve months' imprisonment. It is against this sentence that each appellant seeks leave to appeal out of time. Such leave was granted by this Court on 17th July 2012.
3.	The facts of the case were that on the 9th April 2011 at about 1 pm in the MH Paradise Supermarket each of the two appellants was seen to enter and approach the display of Koffina bottles. They appeared to be drunk. They each picked up one bottle and hid it in their underwear. They left the store, were followed and apprehended. The items were retrieved and a report made to the Police.

4.	The first appellant is a farmer aged 37 years; he cares for a sickly mother and promises not to reoffend. The second appellant is 35 years old and married with a young daughter. He too looks after an elderly mother. The first appellant has six previous convictions while the second accused has 85 previous of which 32 are current and 19 of which are for larceny.

5.	The maximum penalty for this offence is ten years imprisonment and the tariff for simple theft is a range of between 6 to 12 months. In Vaniqi HAA080.08, Shameem J, held that a repeat offender should serve a term of at least 9 months.

6.	The Magistrate being conscious of each appellant's previous record was of the view that the principles of deterrence and prevention should "be given prominence" and therefore passed the 12 months sentence being the top of the tariff. No discount was given for the plea of guilty.

7.	The position of each appellant is different. The first accused has five "live" previous convictions; three of which are for being drunk and disorderly. This offence was said to be committed when he was drunk, and therefore alcohol is an obvious problem. Five previous does not make him an habitual offender and he is therefore entitled to discounts for his guilty plea. From the twelve months sentence, I deduct 4 months from the sentence for the plea. He has one spent conviction for larceny and therefore is not caught by the 9 month Vaniqi precedent. He will receive a further deduction of two months for the fact that the article stolen was recovered (a fact erroneously found to the contrary by the Magistrate) The first appellant will serve a total of six months imprisonment.

8.	The second appellant has 34 "live" previous convictions of which 21 are for larceny/theft. He is obviously an habitual offender but unfortunately it is not open to me under Section 11 of the Sentencing and Penalties Decree 2009 to declare him so to be because this is an appeal from the Magistrate's Court. However in having regard to Sections 4(2)(i) and 5(a) of that Decree it is this court's view that the 12 month sentence should not be disturbed. The Magistrate was quite correct in saying that a sentence on this particular appellant should be a sentence that is rehabilitative and which acts as a deterrent.

9.	The first appellant's appeal succeeds to the extent that it is reduced to a term of six months.

10.	The second appellant's appeal is dismissed.

Paul K. Madigan
JUDGE

At Labasa
25th July, 2012