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Sitiveni v The State [1990] FJHC 30; Haa0054o.90s (8 March 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NOS. 54 AND 55 OF 1990

Between:

KOLINIO SITIVENI
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was convicted in 2 cases by the Nausori Magistrate Court and sentenced to a total of 30 months imprisonment.

In the first case Nausori Criminal Case No. 553/89 the appellant pleaded guilty to stealing a cow which he sold for $140. For this offence he received a sentence of 18 months imprisonment.

In the second case Nausori Criminal Case No. 554/89 he was convicted on 4 counts of stealing 9 roosters after he was caught trying to sell them to an eating-house in Nausori town. For these offences he received a total consecutive sentence of 12 months imprisonment.

The appellant now appeals against the harshness of the total of the two sentences imposed on him and urges his relative youth and other mitigating factors in support of his petition.

The appellant is barely 21 years of age. He pleaded guilty to both offences and the stolen animals have all been recovered and returned to their rightful owners.

He professes to be a "farmer" but if he truly was (and I doubt it very much) then he would have known the seriousness of these offences and the sense of loss that the owners must have felt at the theft of their animals.

This court can find no fault in the sentence of 18 months imprisonment for the offence of Cattle Theft which is upheld. The sentences for the chicken-stealing offences however should have been made concurrent.

The offences were committed on 2 separate days of the same week in June 1989. They were all committed in the same area, Buiduna, and were identical in all respects except for the victims. Nevertheless, the frequency with which the offences were committed deserves to be marked by a custodial sentence.

However 6 months imprisonment is the maximum sentence prescribed in Section 277 of the Penal Code under which the appellant was charged and bearing in mind that the roosters were recovered and his guilty plea, the maximum sentence was inappropriate.

In the circumstances the sentences in Nausori Criminal Case No. 554/89 are set aside and in lieu thereof I imposed the following:

Count 1: 2 months imprisonment

Count 2: 1 month"

Count 3: 2 months"

Count 4: 3 months"

All sentences are ordered to be served concurrently but consecutive to the sentence of 18 months imprisonment imposed in Nausori Criminal Case No. 553/89. Furthermore both sentences are ordered to be served from the 3rd of August, 1989.

The effect of the above is that the appellant must serve a total sentence of (18 + 3) months = 21 months imprisonment with effect from the 3rd of August, 1989 (i.e. an effective sentence of 14 months imprisonment with full remission).

Of this the appellant has already served 11 months. Accordingly his earliest release date is brought forward to 4th November, 1990 (i.e. a reduction of 5 months).

To that extent the appellant's appeal against sentence succeeds.

(D.V. Fatiaki)
JUDGE

At Suva
3rd August, 1990.

HAA0054O.90S