IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 47 OF 1995

Between:

1. FABIANO BIBI
2. SAMISONI NAUACAVU
3. AKEAI VODO
Appellants

- and -

STATE
Respondent

The Appellants in person
Ms Laisa Laveti for the Respondent

JUDGMENT

On 15 November 1995 the appellants were convicted and sentenced to 18 months imprisonment on their own plea by the Magistrate's Court at Labasa for the offence of house-breaking, entering and larceny contrary to section 300(a) of the Penal Code.

Each has appealed against severity of sentence. They have pleaded for a reduction in their sentence.

The first accused told the Court that he is 25 years old and is employed by F.S.C. The second accused said that he is a farmer, is 19 years old and is the sole breadwinner in the family. The third accused had just left school at the time of the offence and it has now been discovered that he is just over sixteen years of age (born on 12 November 1979).

The learned Magistrate had before sentencing said that he does "not like sending 18 and 19 year olds to prison but in this case I cannot see any alternative. I do not see much reason for differentiating the sentences between the 3".

By treating them all alike I find the learned Magistrate fell into an error in this case. The first accused has two previous convictions and the other two are first offenders. The first is the eldest; the second although 19 years old looks big for his age; the third is half the size of second in build and is now found to be 16 years old.

Although the three of them are jointly charged they should be considered separately including a separate consideration of the penalty to be imposed. The learned Magistrate was wrong in dealing with them in a blanket fashion. I agree with PAIN J in MUSUKAWA TAITUTO, SEMESA SORO, WAISEA RASIGA v THE STATE (Crim. App. 18/95 Suva 26/6/95) when he considered the separate sentences of each appellant.

The first accused has two previous convictions the last being on 21 February 1989 and he was treated as first offender for sentencing. The Magistrate's comments regarding increase in crime of this nature is appropriate. However, bearing in mind the sentences in this Court for this type of offence, vide e.g. Crim App No. 43/95, a sentence of 12 months was meted out, I think the sentence in this case of 18 months is slightly on the high side. I therefore quash this sentence and substitute it with one of 15 months.

As for second and third appellants they are young first offenders. Therefore they need to be given a slightly lesser sentence than the first appellant.

According to the record it was the third Appellant who was found inside the house. He is tiny compared to the other two and that is why evidently he was sent inside and he passed the article in question which was later found with the first appellant. For his part the second accused with an unblemished record should get 12 months imprisonment; the sentence is therefore reduced accordingly.

As for the third appellant, he now turns out to be just over sixteen years of age, a fact which was not known to the Magistrate. This appellant did not benefit from the crime and more likely was influenced by the other two who are much older than him and it was the first who benefited from the offence as the article was found on him.

If the Magistrate does not wish to send young offenders to prison, as in this case, it would be worthwhile to bear the following passages in mind from a CIRCULAR MEMORANDUM NO. 4 of 1972 issued by CLIFFORD H GRANT Esq, Chief Magistrate (later Chief Justice):

"There are occasions when a Magistrate considers it necessary to impose a sentence of imprisonment on a youthful offender (over 17 years but under 21 years) or on a first offender for a variety of reasons, such as the seriousness of the offence, the prevalence of the offence or the circumstances of the offender; and it is of assistance to the Supreme Court in its appellate jurisdiction if the Magistrate, in these cases, records his reasons for so doing.

There are also occasions when before imposing a sentence of imprisonment a Magistrate questions the offender as to his age, status, employment, antecedents and background in order to satisfy himself that no other sentence is appropriate; and again it is of assistance to the Supreme Court in its appellate jurisdiction if the Magistrate records the answers of the accused.

It should also be borne in mind that, if the information which a Magistrate obtains from an offender regarding his circumstances and antecedents is insufficient to enable him to decide on the appropriate sentence, it is open to the Magistrate to call for a background report from a probation officer, not necessarily with a view to placing the offender on probation, but so as to furnish the Court with as much information as possible regarding the offender in order to ensure that the proper sentence is imposed."

In view of what I have stated above the third appellant's sentence is quashed and substituted by a sentence of 12 months imprisonment suspended for 18 months.

For the above reasons, the appeals are allowed. The sentence of 18 months imprisonment on each is quashed and substituted by 15 months imprisonment on the first appellant and 12 months imprisonment on the second appellant; the third appellant is sentenced to 12 months imprisonment suspended for 18 months (appellant explained his liability) and is ordered to be released from Prison forthwith.

D. Pathik
Judge

At Labasa
8 February 1996
HAA0047J.95B