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Balawa v The State [2002] FJHC 135; HAA0052.2002S (17 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0052 OF 2002

BETWEEN:

PAULIASI ROKOSAWA BALAWA
APPLICANT

AND:

THE STATE
RESPONDENT

Applicant - In Person
Respondent - Mr. D Prasad

Hearing - 10th July 2002
Judgment - 17th July 2002

JUDGMENT

The accused was on 6^th March 2002 convicted on his plea of guilty on two counts of LARCENY Contrary to Section 259(1) and 259(2) of the Penal Code. The details of charges are as follows:

First Count

LARCENY: Contrary to Section 259(1) and 262 of the Penal Code, Act 17.

Particulars of Offence

PAULIASI ROKOSAWA BALAWA on the 4^th day of March 2002 at Suva in the Central Division stole one wallet valued $15.00, Driving Licence valued $30.00, Visa Card valued $20.00 and $4.00 cash to the total value of $69.00 from Travel Inn room 4 the property of said Jeremy Bouhard.

Second Count

LARCENY: Contrary to Section 259(1) and 262 of the Penal Code, Act 17.

Particulars of Offence

PAULIASI ROKOSAWA BALAWA on the 4^th day of March 2002 at Suva in the Central Division stole $500.00 cash the property of the said Jeremy Bouhard.

The facts of the case are that the complainant was a tourist to Fiji. The appellant met him. The appellant took him around different nightclubs in Suva. The complainant paid for drinks. The complainant withdrew some money from an ATM. The appellant who was standing-by noted the personal identification number (PIN).

On 4^th March 2002 the appellant visited the complainant at his hotel. They both slept in the room. While the complainant was still asleep, the appellant got up, took the complainant’s wallet which contained items stated in count 1. Later he used the visa card which was in the wallet to withdraw money from ATM. He withdrew $500.00. He tried to withdraw a further sum of $500.00 but the card was sucked in by the machine.

On search by police accused was found in a drunken state in Suva.

The learned Magistrate convicted him and sentenced him to 12 months imprisonment on each count both concurrent. Additionally he activated an 18-months suspended sentence imposed on him on 18^th February 2001 on a charge of Housebreaking, Entering and Larceny. The learned Magistrate activated the sentence after asking the appellant why it should not be activated.

The first ground of appeal is that he was not allowed to mitigate. The records do not bear him out. I note from the record that the plea in mitigation is noted. It gives age, status as single, that appellant went to church school and that he was drinking amongst other things, so this ground is without foundation.

The other two grounds are about police conduct and that he was interviewed when suffering from a hangover from drinking. They are irrelevant to the appeal.

Be that as it may, he again on appeal admitted the facts. So the conviction in light of unequivocal acceptance of facts is entirely correct.

His sentence again too is not a bit too harsh. In fact it may be quite lenient in the circumstances of this case.

The only redeeming feature of the case is the plea of guilty. Against this are appellants eight previous convictions all involving dishonesty mainly housebreaking and larceny. There is a breach of trust here too. He appellant took advantage of complainant’s hospitality and friendship. There is also an element of scheme here of noting the PIN numbers of a visa card and then withdrawing money by using the card.

The present offence was committed during the operational period of suspended sentence and soon after suspended sentence was imposed. Opportunity was afforded to the appellant to explain why it should not be activated. Proper procedure was adopted.

The sentence imposed is not a day too long. In fact the appellant should consider himself fortunate that the learned Magistrate made the sentence of 12 months imprisonment for present offences concurrent to the 18 months activated suspended sentence.

The appeal is therefore dismissed.

{ Jiten Singh }
JUDGE

At Suva
17th July 2002