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Boseyaco v The State [1991] FJHC 35; HAA0019.1991s (23 April 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 19 OF 1991

Between:

ISOA BOSEYACO
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. J. Naigulevu for the Respondent

REASONS FOR DECISION

The appellant was convicted in the Magistrate Court at Nausori on the 19th of September 1990 and was sentenced to 2 1/2 years imprisonment. He had pleaded guilty to an offence of House Breaking, Entering and Larceny which he is alleged to have committed in October 1988.

At the time of his conviction and sentence for the present offence, the appellant had only just been released from prison after serving a sentence of 2 years imprisonment imposed by the Suva Magistrate Court on the 6th of January 1989 in respect of 9 offences of Burglary and House Breaking.

Indeed the appellant was released on the 5th of September 1990 and the trial record reveals that he was first charged before the Nausori Magistrate Court for the present offence on the 12th of September, 1990 and sentenced to imprisonment a week later on the 19th of September, 1990. Needless to say the appellant had been at large for barely 2 weeks when he was returned to prison.

The appellant now appeals against the sentence on the ground that it is harsh and excessive and more particularly at the delay in laying the charge against him.

He also complained that the present offence was committed during the same period as the 9 offences for which he had already served a sentence of 2 years imprisonment and because of the delay he was deprived of the opportunity of receiving a concurrent sentence for the present offence.

I am grateful to learned State Counsel for his assistance in this appeal. Counsel confirmed that the previous 9 offences were committed between the 24th of September 1988 and the 5th of November 1988, which places the present offence almost in the middle of that "crime-spree". Furthermore the offences were also similar or identical in nature to the present offence except that they were committed in Suva.

Having regard to the frequency with which the appellant has committed this type of offence, I am satisfied that the learned trial magistrate passed an appropriate albeit heavy custodial sentence in this case.

I am equally convinced that the present sentence would have been ordered to run concurrently with the 9 previous sentences if the charges were dealt with together or if the trial magistrate had been properly appraised of the dates of the previous offences as this court has been.

Learned State Counsel also pointed out that the appellant was charged by the Nausori police for this present offence on the 10th of November, 1988 but no formal charge was laid in court until almost 2 years later on the 12th of September, 1990. Counsel was unable to satisfactorily explain this extraordinary delay and he concedes that a concurrent sentence would not have been wrong in principle had this charge been dealt with along with the other 9.

In my view sentences that ought properly to be served concurrently as a matter of sentencing principle ought not to depend on the arbitrary criterion of when the formal charges are laid or on the location of the court where the charges are laid. The principle must stand on surer ground.

For the above reasons, having regard to the fact that the appellant had already served 8 months of his present sentence, I ordered his immediate release last Thursday the 18th of April, 1991.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd April, 1991.

HAA0019.91S