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Tavitavi v The State [1990] FJHC 57; Haa0056j.90s (25 July 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 56 OF 1990

Between:

VEREIMI TAVITAVI
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was convicted by the Nausori Magistrate Court after he pleaded guilty to an offence of Shop Breaking Entering and Larceny. Upon his conviction he was sentenced to 2 years imprisonment.

The facts of the case as outlined and admitted by the appellant was to the effect that the appellant and a co-accused in an intoxicated state broke and entered the village Co-operative Store and stole grocery items and a hand riveter worth a total of $85.90.

The appellant now appeals against the sentence on the ground that it is harsh and excessive.

In presenting his appeal the appellant firstly urged the disparity in his sentence and that of his co-accused and various mitigating factors which he complains were not taken into account by the learned trial magistrate.

As to the disparity in the sentences imposed on the appellant and his co-accused, the magistrate court record reveals that the appellant's co-accused received a sentence of 11 months imprisonment suspended for 2 years and although the obvious disparity in the sentences is not explained in anyway by the learned trial magistrate, it is sufficiently plain that this was based upon their past records and the respective roles that each accused played in the commission of the offence.

In this latter regard the appellant admitted being the principal offender whereas his co-accused was a "watchman". As for their previous records the appellant has 6 previous convictions including theft whereas his co-accused was a first offender.

In the circumstances some distinction could properly be made in the sentences imposed. On this complaint the learned trial magistrate cannot be faulted.

However the appellant's record of previous convictions were mostly for relatively minor unrelated offences with the last being in July 1987. He is 25 years of age and this is his first custodial sentence.

He has already served 10 months of his sentence and professes to have learnt a salutary lesson from that experience. He asks to be given an opportunity to reform his life and to be allowed to return to his home so that he can tend to his cattle farm and care for his wife and aging parents.

Having carefully considered the circumstances of the offence including the recovery of some of the stolen items and the various mitigating factors urged by the appellant, I am satisfied that this offence was committed largely as a result of his intoxicated state at the time and not because of any "deep-rooted" criminal tendency on the part of the appellant.

I shall therefore give him the chance that he pleads for and accordingly reduce his sentence so as to permit his immediate release from prison.

(D.V. Fatiaki)
JUDGE

At Suva,
25th July, 1990.

HAA0056J.90S