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Nawalu v The State [1990] FJHC 54; HAC0044d.1990s (25 July 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NOS. 44, 45, 46 OF 1990

Between:

MOSESE NAWALU
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

REASONS FOR DECISION

Last Thursday the 19th of July I ordered the immediate release of the appellant and said that I would give my reasons later. This I now proceed to do.

The appellant was convicted by the Nausori Magistrate Court on the 21st of September 1988 after he pleaded guilty to 3 offences of School Breaking Entering and Larceny.

The offences were committed between the 5th of August and 19th September 1988 and concerned the same school on each occasion namely, Shreedhar Maharaj College. The total value of the properties stolen on all 3 occasions was $1,418.10 and included an electric welding plant, a wall clock, an assortment of school stationery and some confectionary items.

Upon his conviction the appellant was sentenced as follows (in the order in which the trial magistrate dealt with them):

(1) Cr. Case No. 639/88 - a sentence of "..... 2 years 6 months imprisonment."; and

(2) Cr. Case No. 637/88 - a sentence of "..... 2 years 6 months imprisonment to be served concurrently to that of Criminal Case Number 639/88."; and

(3) Cr. Case No. 638/88 - a sentence of "..... 2 years and 6 months to be served concurrently to that of Criminal File 639/88 and 638/88." Clearly this last file No. is an obvious mistake and should have read "637/88".

I have purposely emphasised the term "concurrently" and quoted from the certified typed records of the learned trial magistrate to show that the total effective prison term that the appellant was sentenced to was one of 2 years 6 months imprisonment.

However the appellant maintained at the hearing of his appeal that his total sentence was one of 5 years imprisonment. Certainly that is what the prison authorities led him to understand.

In the event the court was obliged to examine the original handwritten records of the Magistrate court and in particular the handwritten file copies of the appellant's committal warrants. It is clear from these warrants that the appellant's cumulative sentence was indeed 5 years imprisonment and that a typographical error was made in transcribing the handwritten note of the trial magistrate in Cr. Case No. 637/88 in particular the word "consecutive" has been typed as "concurrent".

Be that as it may the "error" was not the fault of the appellant and although his release might appear to be a "windfall" it is not completely unmerited when one considers the mitigating factors urged by him.

He was born on the 16th of August 1969 and would have been 19 years of age at the time of committing these offences. The items that were stolen with the exception of the welding machine and wall clock (both of which were recovered) might be considered of "minimal use or value". Whatsmore they were all taken from the same premises over a fairly short period of 6 weeks.

In my view this was a clear case of a "single criminal activity" and should have been met by concurrent sentences.

In failing to so-exercise his discretion the learned trial magistrate has in my view imposed a harsh and excessive cumulative sentence of 5 years imprisonment.

Accordingly as I was minded in any event to allow the appellant's appeal against sentence by ordering that the sentences imposed in all 3 cases should be served concurrently and as the appellant had already served 22 months imprisonment (which in real terms with full remission amounts to an effective prison sentence of 2 years 6 months), I considered it appropriate to order his immediate release.

(D.V. Fatiaki)
JUDGE

At Suva
25th July, 1990.

HAC0044D.90S