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Cevauibau v The State [1990] FJHC 32; Haa0057j.90s (8 March 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 57 OF 1990

Between:

LUTU CEVAUIBAU
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

On the 20th of March 1990 the appellant was convicted for an offence of House Breaking Entering and Larceny and sentenced to 3 years imprisonment. He had broken and entered the complainant's house whilst it was unoccupied and stolen several household items, beer and an assortment of personal clothing with a total value of $1,127.00.

The appellant now appeals against his sentence on the ground that it is harsh and excessive. He urges the assistance he rendered to the police in the recovery of the items and other mitigating factors in support of his appeal and complains that the sentencing magistrate was unduly influenced by his record of previous convictions.

In this latter regard the appellant indeed has a bad record of previous convictions which includes 6 offences similar to the present and for which he mostly received prison sentences. He has learnt little if anything from having served those prison sentences in the past.

However there is a "glimmer of hope" in that the appellant's last conviction for a breaking offence occurred back in 1983 and since then his problem appears to have been an over-indulgence in alcohol.

He pleaded guilty to the present offence and State Counsel confirms that the appellant did assist the police in recovering all the household items which accounts for more than 2/3 rds of the total value of the items stolen.

The appellant has only served 5 months of his sentence and already he professes to be a "changed man" both religiously and in his outlook to life. He asks to be released on a suspended sentence to enable him to return to his home island of Lakeba in Lau where he can care for his aging parents.

The court cannot help feeling sceptical about the claims and concerns of the appellant whose record shows that in 1985 and 1986 he was in his home island of Lakeba and even whilst there and presumably whilst living with his parents, he continued to commit offences.

Be that as it may in the absence of any indication in the magistrate court record to the contrary, this court cannot assume that the Magistrate did pay regard to the various mitigating factors urged before him by the appellant.

In the circumstances some adjustments can be made to the sentence which is accordingly reduced to one of 18 months imprisonment with effect from the 20th of March, 1990.

(D.V. Fatiaki)
JUDGE

At Suva,
3rd August, 1990.

HAA0057J.90S