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Bavoro v The State [2002] FJHC 141; HAA0061J.2002S (2 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0061 OF 2002

Between:

MAIKA BAVORO; and
VARASIKO NAITUKU
Appellants

And:

THE STATE
Respondent

Counsel: Appellants in Person
Mr D.G. Toganivalu for Respondent

Hearing: 26^th July 2002

Judgment: 2^nd August 2002

JUDGMENT

This is an appeal against convictions and sentences of both Appellants on the following offences:

FIRST COUNT

Statement of Offence

BURGLARY: Contrary to Section 299(a) of the Penal Code, Cap. 17.

Particulars of Offence

MAIKA BAVORO and VARASIKO NAITUKU, on the 12^th day of May, 2002 at Suva in the Central Division, broke and entered the dwelling house of CHANDU UMARIA s/o NAND KANT UMARIA, with intent to commit a felony therein, namely Larceny.

SECOND COUNT

Statement of Offence

LARCENY IN DWELLING HOUSE OF PROPERTY TO A VALUE AMOUNTING NOT LESS THAN $10.00: Contrary to Section 270(a) of the Penal Code, Act 17.

Particulars of Offence

MAIKA BAVORO and VARASIKO NAITUKU, on the 12^th day of May, 2002 at Suva in the Central Division, stole in the dwelling house of CHANDU UMARIA s/o NAND KANT UMARIA chattels, one Pierre Cardin wrist watch valued $300.00, one bracelet valued $1,000.00, two gold chains valued $1,500.00, two pairs bengals valued $2,500.00 to the total value amounting to not less than $10.00, the property of NALINI DEVI d/o HARISH SHANKAR to the total value of $5,300.00.

Both Appellants pleaded guilty in the Magistrates= Court on the 14^th of May 2002, and were sentenced to three years imprisonment on each count to be served concurrently. The second Appellant, who had committed the offences while on a suspended sentence for a similar offence, had 12 months of his 18 month suspended sentence activated. The activation was ordered to be served consecutive to the three year term.

The Appellants appeal against conviction and sentence. The first Appellant appeals against sentence only. I summarise the grounds of appeal thus:

1. A conviction on count 1, for Burglary was not possible because the offence was committed during the day;
   
2. The Appellants were prejudiced because of lack of legal representation;
   
3. The sentences were harsh and excessive.
   

I deal with each of the grounds in turn.

Grounds of Appeal

Section 299(a) of the Penal Code provides as follows:

AAny person who in the night -

(a) breaks and enters the dwelling-house of another with intent to commit any felony therein; ........

is guilty of the felony called burglary, and is liable to imprisonment for life, with or without corporal punishment.@

The offence must therefore be committed at night. The charge does not specify this ingredient of the offence. Further the facts as outlined indicate that the offence was committed sometime after 1.30pm on the 11^th of May 2002. The learned Magistrate referred to the offence as having being committed in Abroad daylight.@ The facts did not disclose the offence and the Appellants could not have been convicted on Count 1. State counsel quite properly conceded the defect in the charge.

Both convictions and sentences are therefore quashed on Count 1. The convictions on Count 2 are proper and the charge is disclosed by the facts of the case.

As to sentence, as State counsel submits, the three year term is within the tariff for offences of larceny in dwelling house. However the learned Magistrate erred in taking into account the remission granted by the Prisons Department. Assuming that he added an extra year to take into account the one-third remission currently available, I therefore reduce both sentences by one year. Each Appellant is therefore to serve two years imprisonment on Count 2.

As to the activation of the suspended sentence, the record shows that the second Appellant was asked to show cause why the suspended sentence should not be activated. The order that the activated sentence be served consecutive to the substantive sentence is right in principle, and the total sentence for the second Appellant of three years imprisonment does not offend the totality principle.

In summary this appeal succeeds to the extent that the convictions and sentences on Count 1 for both Appellants, are quashed. The convictions on Count 2 are upheld, but the sentences of both Appellants are reduced to two years imprisonment. The activation of the suspended sentence remains, and the total sentence to be served by the second Appellant is three years imprisonment.

Nazhat Shameem
JUDGE

At Suva
2^nd August 2002