IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS: HAA0043 & HAA0044 OF 2002
(Suva MC Case Nos. 78 & 80 of 2002)

Between:

HENRY WAH ZOING SEETO
Appellant

And:

THE STATE
Respondent

Hearing: 21st June 2002
Judgment: 28th June 2002

Counsel: Appellant in Person
Mr. D. Prasad for Respondent

JUDGMENT

The Appellant, on the 2nd of April 2002, was convicted, on his plea of guilty, to the following charges:

FIRST COUNT

Statement of Offence

BURGLARY: Contrary to section 299(a) of the Penal Code, Act.17.

Particulars of Offence

HENRY WAH ZOING SEETO, on the 21st day of March, 2002 at Navua in the Central Division by night broke and entered into the dwelling house of MAREN MUCHA with intent to steal therein.

SECOND COUNT

Statement of Offence

LARCENY IN A DWELLING HOUSE OF A PROPERTY TO A VALUE AMOUNTING NOT LESS THAN TEN DOLLARS: Contrary to section 270 of the Penal Code, Act 17.

Particulars of Offence

HENRY WAH ZOING SEETO, on the 21st day of March, 2002 at Navua in the Central Division stole in the dwelling house of MAREN MUCHA chattels, namely one laptop computer valued $4,500.00, one mobile telephone valued $800.00, one camera valued $1,300.00, 15 compact discs valued $600.00, one compact disc player valued $150.00 and $6,000.00 cash, a value amounting to not less than ten dollars the property of the said MAREN MUCHA, to the total value of $13,350.00.

He was sentenced to 18 months imprisonment on each count, to be served consecutively with each other.

On the same day, in the same court he pleaded guilty to the following charge (in Case No. 80 of 2002):

Statement of Offence

DISPENSARY BREAKING, ENTERING AND LARCENY: Contrary to section 300(a) of the Penal Code, Act. 17.

Particulars of Offence

HENRY WAH ZOING SEETO, between the 13th day of March, 2002 and the 14th day of March 2002 at Navua in the Central Division, broke and entered the Navua Hospital Dispensary and stole therein one Microscope valued at $12,000.00, the property of the Fiji Government.

He was sentenced to 12 months imprisonment to be served consecutively to the sentences for burglary and larceny in Case No. 78 of 2002.

He now appeals against the sentences imposed in both these cases, saying that the consecutive sentences offended the totality principle, and were harsh and excessive.

The facts, in respect of Case No. 78/2002 are that the Appellant broke into the house of Maren Mucha at Pacific Harbour and stole the items in the charge. The owner of the house was away at the time. The Appellant entered the house by tearing the gauze wire on the sliding door. Items worth $6,360 were recovered from him.

In Case No. 80/2002 the Appellant broke and entered the Navua dispensary and stole a microscope worth $12,000. He entered the Dispensary through the ventilation opening. The microscope was recovered. The Appellant admitted these facts in the Magistrates Court, and does not dispute them. He admitted 8 previous convictions, most of which are for larceny and house-breaking. He was sentenced to a total term of 4 years imprisonment.

In respect of Case No. 78/2002, the Appellant was given consecutive terms for what was in effect, one transaction. Although there were two counts in the charge sheet (as held to be the proper procedure by Townsley J in Sailosi Lewai -v- The State Cr. App. No. HAA0038 of 1997) both counts related to the one breaking and entering. A concurrent sentence was therefore appropriate. Further, an appropriate sentence which would reflect the gravity of the offending would have been a two year term on each count to be served concurrently. In fact, from the authorities referred to me by State counsel, it would appear that a term of imprisonment of up to 4 years imprisonment is the tariff for breaking and entering offences. With a starting point of three years, with no substantial mitigating factors except for the guilty plea, and the partial recovery of the property, a term of two years imprisonment would not be inappropriate. The sentence on 78/2002 is therefore varied to the extent that the sentence on each count is increased to two years imprisonment. However the sentences are to be served concurrently with each other, so the total term on this file is two years imprisonment.

On Case No. 80/2002, the sentence of 12 months imprisonment was not harsh or excessive. As State counsel submitted, the Appellant was stealing from the Ministry of Health, and from those members of the public who use public health facilities, most of which are already over-stretched. He did not deserve a lenient sentence, particularly after a consideration of his previous convictions. Further, the breaking into the Navua Dispensary was a separate offence, which called for a consecutive sentence. The total term of three years imprisonment is neither disproportionate to the total offending, nor manifestly harsh and excessive. The Appellants appeal on Case No. 80/2002 is therefore dismissed.

The total term of imprisonment is varied to three years imprisonment dated from the 2nd of April 2002.

Nazhat Shameem
JUDGE

At Suva
28th June 2002