IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 101 OF 1989

Between:

PENISONI SAUKILEYA
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

The appellant was convicted by the Nausori Magistrate Court after he pleaded guilty to 3 counts of Hotel Breaking, Entering and Larceny.

Upon his conviction the learned trial Magistrate sentenced the appellant as follows:

On Count 1	:	12 Months imprisonment
On Count 2	:	12 Months imprisonment
On Count 3	:	12 Months imprisonment

This last sentence was ordered to run concurrent to the sentences imposed on Counts 1 and 2 making a total effective sentence of 24 Months imprisonment.

The appellant now appeals against his sentence on the ground that it is harsh and excessive having regard to the value of the properties stolen.

The facts outlined by the prosecutor and admitted by the appellant was that the appellant and another removed 3 louvre-blades and entered a dormitory-type accommodation block situated at the Royal Hotel in Levuka and stole various items belonging to 3 separate hotel guests. The total value of the stolen items was almost $2,000.

At the hearing of the appeal the appellant complained that he had been wrongly charged with 3 separate offences when he had only broken once into the hotel. However a cursory examination of the charges reveals that whilst it is true the appellant only broke and entered the Royal Hotel nevertheless whilst there he stole from 3 different guests. There is nothing improper in the form or the manner in which the charges are laid in this case and that complaint of the appellant is dismissed.

The appellant has already served 6 months of his present sentence and he urges his youth and a desire to reform and return to his home island of Gau in support of his appeal. He professes to a realisation of the wrongfulness of his actions and attributes his offending to his association with bad company.

The appellant was born on the 23rd of March 1969 and has still not attained his 21st birthday yet he already has 13 previous convictions. I note however, that these were all committed in 1985/86. The appellant has therefore managed to stay out of trouble for the past 3 years and ought to be encouraged to continue to do so if at all possible.

He claims that he committed these offences whilst on his way to his home island of Gau and he asked to be allowed to return there.

Learned State Counsel in seeking to support the sentence imposed by the learned trial pointed out that the sentences on the 1st and 2nd Counts were made consecutive because of the larger values of the properties stolen in those 2 Counts! With respect that is a somewhat unusual proposition.

The sentencing of the appellant in this case offends several well-known sentencing principles and reveals some confusion in the learned trial magistrates thinking on this aspect.

I accept that a Magistrate is given a wide discretion in matters of sentencing nevertheless it must be exercised judicially and in terms of settled principles of sentencing. For instance: "sentences imposed for what is essentially one incident or transaction ought to be ordered to run concurrently save in very exceptional circumstances".

In this case even though the victims were different in each of the offences charged the learned trial Magistrate has not chosen to impose consecutive sentences. Instead, he has combined both consecutive and concurrent sentences in respect of the one criminal transaction.

Such a sentence is at best inconsistent and at worst, unprincipled, and cannot be said to have been the product of a judicial exercise by the learned trial magistrate of his discretion. 

I accept the sentiments expressed by the learned trial magistrate when sentencing the appellant but the sentences as presently computed cannot be allowed to remain and are accordingly quashed. 

In substitution thereof I impose a sentence of 18 months imprisonment on each count and order that they be served concurrently. The sentences are to take effect from the 26th of July 1989.

I also note that the appellants co-accused received a cumulative sentence of 38 months imprisonment. Why the learned trial magistrate passed such a significantly disparate sentence is not explained nor was it warranted by the facts. It is not suggested that he was the "master mind" or that he benefited most or had a worse record of previous convictions. Neither could learned State Counsel assist in this regard.

Additionally I note that in his case too the learned trial magistrate improperly imposed both consecutive and concurrent terms.

Accordingly in the exercise of my powers of revision the sentence of the co-accused David Wise is quashed and in substitution thereof I impose a sentence of 24 months imprisonment on each Count. The sentences are to be served concurrently and take effect from the 26th of July 1989.

(D.V. Fatiaki)
JUDGE

At Suva,
14th February, 1990.
HAA0101J.89S