IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 46 OF 2000
(Levuka Mag. Ct. Cr. Case No. 63/99)

Between:

AVINESH SINGH
s/o Maan Singh
Appellant

And

STATE
Respondent

Mr. Ram Chand for Appellant
Mr. V. Vosarogo for the State

JUDGMENT

On 6 August 1999 the appellant Avinesh Singh s/o Maan Singh was on his own plea in the Magistrate’s Court at Levuka convicted on three counts of larceny, and on 8 October 1999 sentenced to imprisonment for two years on each count to run concurrently.

The appeal is against severity of sentence.

Facts

The facts of the case are that the appellant who lived with his employer (the complainant) stole from him cigarette of the total value of $3737.50 on three different occasions. He gave them to two others, who are also charged with him, to sell in Levuka town.

The police upon search recovered cash the sum of $1035.11 being the proceeds of sale of cigarette from the appellant and another. Also cigarette of the value of $2511.60 was also recovered. The appellant said that he stole because he was not paid his wages but after hearing the employer the learned Magistrate told the appellant that he should not have taken the law in his own hands.

Appellant’s submission

The learned Counsel for the appellant submitted that after he was sentenced, and after some time the appellant was released on bail pending appeal on the strength of a letter from St. Giles Hospital where he was a patient at one time. Mr. Chand tendered to that Court and to this Court a letter dated 1 November 1999 from the Hospital which stated that the appellant "has been diagnosed with mild mental retardation, epilepsy and personality problems. This patient was last seen at St. Giles in February 1995. Since that time until February 1996 his medication has been collected by his father. The last time medication was given out for this patient was in May 1997". Counsel further tendered to Court a report dated 3 November 1999 on the health of his parents which shows them to be very sickly and very much dependant on the appellant as he is the sole breadwinner.

At the time of sentencing, Mr. Chand submitted that the learned Magistrate did not have all the above facts and if these were available to him and had the appellant been represented by counsel, the sentence could have been different.

Counsel asks Court to review the sentence in the light of the above new facts and impose a sentence which is warranted in this case.

Respondent’s submission

The learned Counsel for the State conceded that the sentence may have been on the high side under the circumstances. The learned Magistrate said that the appellant was in a position of trust, but he submitted that this was not so in this case and he referred the Court to the case of John Barrick 81 Cr. App. R.(S)78 which sets out guidelines on the proper level of sentence to be imposed in a breach of trust case such as in larceny by servant cases. Counsel submitted that there was an unequivocal plea of guilty and on the facts before him the Magistrate passed sentence. He is asking the Court to exercise its discretionary powers.

Consideration of the appeal

I have considered the submissions herein from both counsel.

It is conceded on behalf of the State that the sentence is excessive in all the circumstances of this case. Mr. Chand urges the Court, in the light of the Reports which he tendered to Court and which were not available to the learned Magistrate, to review the sentence passed on the appellant.

Because this was not a breach of trust case but a straight out larceny case, I agree that the principles set out in Barrick (supra) do not apply here. However, this was a serious case and on the facts before him the Magistrate’s remarks and the passing of sentence was not wrong in principle except that, as the State concedes, it was excessive in the circumstances.

The question now is, in view of the said Reports, what should be the proper form of sentence. Although not raised it appears to me that the appellant has stopped taking medication prescribed by St. Giles Hospital at one time and this may have affected his mental condition giving rise to the commission of the present offence. Be that as it may, this did not give him the liberty to commit the offence with which he is charged. He was fit to plead as nothing to the contrary was at any time indicated to Court.

What is of some concern to me is, because the appellant has been out on bail pending appeal since December 1999 after having served about three months in prison after sentence, whether he should be returned to prison. There are so many mitigating factors to be considered particularly the full recovery of the value of the goods stolen, the accused’s own old mental condition and the pathetic condition of his parents who need his presence more than ever before which I consider call for a sentence other than an immediate custodial sentence.

Having given the matter very careful consideration, I think in all the circumstances of this case the right sentence in this case is a suspended sentence of imprisonment. Accordingly I set aside the sentence of two years’ imprisonment on each of three counts and substitute with one of 18 months’ imprisonment suspended for 2 years with a direction that the appellant should have himself regularly checked at St. Giles Hospital and take whatever medicine is prescribed for his alleged mental state. The appellant is explained his liability under s.29(4) of the Penal Code.

To that extent the appeal is allowed.

D. Pathik
Judge

At Suva
21 July 2000