IN THE HIGH COURT OF FIJI
At Labasa
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 28 OF 1993

Between:

SOWANI SAUNITOGA
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. Ian Wikramanayake for the State

JUDGMENT

The appellant pleaded guilty to a charge of larceny by servant contrary to section 274(a)(i) of the Penal Code in the Savusavu Magistrate's Court on the 16th August, 1993. The learned Magistrate sentenced him to two years' imprisonment.

The appellant has appealed against sentence on the ground that it is excessive taking into account that it is his first offence, that he is 45 years of age, is married with 11 children to support and educate and that he has made restitution of a portion of the amount involved but because of this case he has not been able to continue with his payment.

The learned State Counsel concedes that the more appropriate sentence would have been a suspended sentence in this case. He said to suspend or not to suspend depended largely on matters relating to the accused and not to the offence. It appears that the learned Magistrate's reason for not suspending is because of the appellant's inability to pay back. He tried to pay before the charge but could not continue paying because of circumstances beyond his control. Counsel cited the case of BIRENDRA NARAYAN v. STATE (Cr. Case No. 11/91) before FATIAKI J. in which the accused received a sentence of 15 months' imprisonment after trial involving $45,000. Here he says there are far more mitigating circumstances.

There is no doubt that the appellant stands convicted of a serious offence and in the absence of proper mitigating factors he would receive a custodial sentence which he did.

The question is whether a suspended sentence is more appropriate in the instant case. Unquestionably the Magistrate has a discretion to pass a suspended sentence.

Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension. There are many such instances of that.

This case is one in which a suspended sentence will not be inappropriate and the learned State Counsel very correctly and fairly concedes that.

The offender who is 45 years of age with wife and 11 children had worked for his former employer for 25 years; he has paid back the sum of $2300 out of a total of $9359.52 involved; he tells me that he ran a youth club in his village, is a member of the Parish Council of Catholic Mission and that he is a Marriage Counsellor in Savusavu; he says that a daughter aged 18 years and one who used to assist his wife has suffered a stroke and that he has 3 children attending secondary school, 3 attend primary and 3 stay home.

When the offender spoke in mitigation none of the above matters were brought to the attention of the learned Magistrate except that he has paid out $3000. It is possible that had the learned Magistrate been made aware of all these matters the sentence may well have been different for all that the learned Magistrate says while sentencing is "this type of case calls for deterrent punishment. Although the accused is a first offender a suspended would not suffice the gravity of the case". It appears that because of the "gravity of the case" the immediate custodial sentence was passed.

The appellant has hitherto been of good character with a large family to support with no previous convictions; he committed a relatively isolated offence of a serious nature involving dishonesty on his part but some restitution has been made which he could not continue because of circumstances over which he had no control. It is the Court's view that there were strong mitigating factors which ought to have been examined a little more closely.

Bearing in mind all the circumstances of this case including the strong mitigating factors and a very strong plea made by the learned State Counsel, I consider this to be an appropriate case to give the appellant a suspended sentence of imprisonment.

I therefore set aside the sentence of two years' imprisonment and substitute therefor a sentence of two years' imprisonment which is suspended for three years with effect from today.

The appellant is warned under S.29(4) of the Penal Code that if he re-offends in the next 3 years and is sentenced to imprisonment he may have to serve this 2 years' sentence in addition to any other prison sentence that may be passed on him.

D. Pathik
Acting Puisne Judge

At Labasa
5th October 1993
HAA0028J.93B