| Fiji Islands - Sevanaia Via Koroi v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA 031 OF 2001S
BETWEEN:
SEVANAIA VIA KOROI
Appellant
AND:
THE STATE
Respondent
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel: Appellant in Person
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Hearing: 15th May 2001
Judgment: 18th May 2001
JUDGMENT
>
The Appellant appeals against his sentence on his plea of Guilty to the following charge:
Statement of Offence
LARCENY: Contrary to section 259(1) and 262(2the Penal Code Act 17.
Particulars of Offence
LAISA VAKATALAI, ADI SEREANA NASOMI and SEVANAIA VIA KOROI on the 31st day of December 1999 at Samabula in the Central Division, stole
$444.78 cash the property of Semesa Vugona.
He was sentenced on 23rd February 2001 by the Suva Magistrates Court to 18 months imprisonment. The learned Magistrate also activated
a suspended sentence of 18 months imprisonment imposed by the Suva Magistrates Court in Court File 1829/99. That suspended sentence
was for a conviction of Larceny from Person imposed on 24th September 1999.
The facts of the case, as outlined by the prosecution are that one Semesa Vugona of Tamavua Village went to church on 31st December
1999 at about 8am, leaving his briefcase containing mataqali funds of $917.00 and church funds of $527.78 inside his house.
In the evening, the Appellant with two others, met and planned to steal the money. The 1st accused passed the brie to the 2nd accused
and thed the Appellant, who took it away to the house of the 2nd accused. The money was shared between all accused.
The matter was reported to the police two weeks later. It appears that tllage community hoped that the money would be returned by
the persons responsible in the mehe meantime. The accused and the Appellant were then apprehended. They all pleaded guilty in the
Suva Magistrates Court. The 2nd Accused is still on bench warrant. The 1st accused a first offender has paid $500 to the complainant.
She was bound over in the sum of $200 to be on good behaviour and not to re-offend in the next twelve months.
In mitigation the Appellant asked for forgiveness. He said in a written submission that he is a married man, that his marriage would
be affected if he were to be imprisoned, and that he would not re-offend.
In sentencing him, the learned Magistrate found that the offence was committed whilst the Appellant’s suspended sentence was still
current. Under the terms of that sentence, the Appellant was to have gone to Gau Island on 25th September 1999, and to remain there
for two years.
The learned Magistrate used two years imprisonment as the starting point, and deducted six s for his guilty plea, thus arriving at
eighteen months imps imprisonment. He found that the Appellant had failed to show cause why his suspended sentence should not be
activated and that the sentence should be activated to be served consecutively to the eighteen months imposed for the Larceny offence.
On appeal, the Appellant re-argued the submissions he made to the learned Magistrate. State Counsel submitted that the sentence imposed,
and the re-activation of the suspended sentence were right in principle.
The maximum sentence set for larceny under section 262 of the Penal Code is 5 years imprisonment. Any person who commits the offence of simple larceny after having been previously convicted of a felony
is liable to imprisonment for ten years. The maximum sentence that could have been imposed on the Appellant was ten years imprisonment.
He has a number of previous conviction for felonies, including Larceny and Robbery with Violence.
In the circumstances the sentence of 18 months imprisonmen an offence of stealing from his own mataqali, and his own church funds,
is hardly excessivessive. It is certainly not wrong in principle.
As to the suspended sentence, the Appellant committed the offence durhe period of suspension. He was in breach on two grounds, firstly
for failing to go to Gau Gau and remaining there, and secondly for committing the offence.
A suspended sentence may not be activated if the suent offence is trivial (R -v- Moylan 53 Cr. App. R. 590). Once activation ison is ordered, it should normally be ordered to run consecutively to the new sentence. Finally the court should
consider whether, after activation the sentences on the totality principle, is appropriate for the nature of the offending.
Applying these principles to the facts of the Appellant’s case, I find that the learned Magistrate was correct in principle to order
the activation of the whole of the suspended sentence. The total term of three years imprisonment is not inappropriate, and I decline
to reduce the term in any way.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> This appeal is dismissed.
Nazhat Shameem
JUDGE
At Suva
18th May 2001 Haa0031j.01s
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