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Matai v State [2013] FJHC 294; Criminal Appeal 03.2013 (17 June 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. 3 of 2013
(from Savusavu Cr. 433/2012)

BETWEEN:

SOLOMONE MATAI
Appellant

AND:

THE STATE
Respondent

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Ms .P. Lo for the State
Appellant in person

Date of hearing : 30 May 2013
Date of judgment : 17 June 2013

JUDGMENT

[1] On the 20th February 2013 in the Magistrate's Court at Savusavu the appellant was convicted on his own plea with one other of a charge of theft contrary to section 291 of the Crimes Decree 2009. He was sentenced on the same day to a term of imprisonment of 16 months. It is against this sentence that he has filed a timely appeal, pleading that it is in the circumstances harsh and excessive.

[2] The facts of the case, admitted by the Appellant in the Court below were that:

On Saturday 22 December 2012 the appellant and his co-accused were drinking beer in a room at the Hot Springs Hotel, Savusavu. In passing to a different venue to drink beer they noticed that the door of Room 104 was ajar with the occupant sleeping soundly. While drinking more beer on the deck of the hotel they decided to go to Room 104 and steal what they could find. They entered the room and stole clothing, a mobile phone, a "Puma" travel bag and cash of $3,000. They repaired to the appellant's home where they set drinking money aside, hid the goods under a bed and hid the remaining cash in bushes opposite the Marina. The victim a visiting businessman woke to find his items missing and reported it to the Police. Both the appellant and his co-accused were arrested and they helped to recover the goods and the cash, less $47.

[3] In mitigation before the Court below, this appellant said that he was 23 years old, he was single and he worked as a graphic designer earning $120 per week. He was the only person earning in his family and was looking after his grandmother and his two sisters and their children.

[4] This appellant had four previous convictions for dishonesty, three for larceny and one for burglary.

[5] In passing sentence the learned Magistrate referred to the sentencing tariffs for theft which are 2 to 9 months for a first offence and 9 months at least for any subsequent conviction. He took into account the early guilty plea and his co-operation with the Police. He found it to be aggravating that there was more than one person acting together and that it was planned. He said that he was passing a lengthy sentence as a deterrent.

[6] For this particular appellant he took a starting point of 24 months, added 8 months for the aggravating features (referred to above), deducted 8 months for the early plea of guilty and another 8 months for his "personal circumstances and mitigating factors" arriving at a final sentence of 16 months' imprisonment.

[7] Despite his previous record, which was generated, the appellant tells me, when he was a young and unemployed teenager, there is some force to the appellant's submissions that this sentence is not only on the high side but could be said to be harsh.

[8] The appellant in his own clearly stated written and oral submissions takes issue with details in the Summary of Facts, facts which he admitted quite readily without demur in the Court below. Having admitted the facts it is now not open to him to dispute them. Nor is he able to pass all blame onto his co-accused, which he seemed to be trying to do before me at the hearing of his appeal. It is quite clear that he was acting in concert with the other in this theft.

[9] Unfortunately the Magistrate fell into error in his sentence in finding that it was an aggravating feature of the theft that there were two persons acting in concert. Quite understandably in a robbery if there is more than one robber it is aggravating, not only because the legislation says so, but because it increases the threat and fear to the victim to be confronted by more than one; but for a theft from a victim who is unaware of the crime at the time, it matters not to him whether it is committed by one or 5 persons. That "aggravating feature" as found by the Magistrate is invalid. Similarly invalid is the Magistrate's finding that the theft was aggravated by being "planned". The facts show that it was more opportunistic rather than planned; the pair had no intention to steal, but an opportunity presented itself to them by way of a sleeping guest in an open room and after discussion over yet more beers they decided they would take advantage of the situation.

[10] In the case of Seru HAA 0084J.2002S, Shameem J. held that on conviction for a second or subsequent offence of theft the tariff should be 4 to 18 months imprisonment, for the very reason that the statutory maximum for a second theft doubles, so the tariff should double.

[11] Pursuant to section 256 of the Criminal Procedure Decree, I quash the sentence passed below and sentence afresh. I take the Magistrate's same starting point of 24 months and find that there are no aggravating features that would enhance that term. I deduct 8 months that the Magistrate deducted for his mitigation, arriving at an interim total of 16 months imprisonment. Finally, and it should always be the final step in sentencing, I deduct around a third for his early guilty plea and co-operation. I deduct 5 months to reflect that plea.

[12] This appeal succeeds to the extent that his sentence of 18 months is quashed and it is replaced with a new sentence of 11 months, dating from 20 February 2013.

Paul K. Madigan
JUDGE

At Labasa
17 June, 2013