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Ratubelo v State [2002] FJHC 186; HAA0083J.2002S (25 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 83 OF 2002S

Between:

WAME RATUBELO
Appellant

And:

THE STATE
Respondent

Hearing: 22nd November 2002
Judgment: 25th November 2002

Counsel: Mr R. Singh for State
Appellant in Person

JUDGMENT

The Appellant was charged, on three separate files, with the following offences:

Cr. Case No: 63/02

Statement of Offence

BURGLARY: Contrary to section 299(a) and LARCENY FROM DWELLING HOUSE: Contrary to section 270(a) of the Penal Code, Cap. 17.

Particulars of Offence

GEORGE BYRON BECHU and WAME RATUBELO, on the 7th day of June 2002 at Levuka in the Eastern Division by night broke and entered the dwelling house of Alvis Kumar s/o Ashok Kumar with intent to steal therein and did steal therein one tabua valued $200.00, one Sony radio valued $80.00, six bottles of beer (L) valued $19.20, one kilogram of kasa valued $3.00, 1 pair of black shoes valued $40.00, one level valued $75.00, one handsaw valued $15.00, all to the total value of $432.00, the property of Alvis Kumar s/o Ashok Kumar.

Cr. Case No. 69/02

Statement of Offence

BURGLARY: Contrary to section 299(a) and LARCENY: Contrary to section 270 of the Penal Code, Cap. 17.

Particulars of Offence

WAME RATUBELO on the 5th day of June, 2002 at Levuka in the Eastern Division by night broke into the dwelling house of Alvis Kumar s/o Ashok Kumar and stole therein one and half kg waka valued $22.00, one and half kg lewena valued $15.00 and $30.00 cash to the total value of $67.00 the property of the said Alvis Kumar s/o Ashok Kumar.

Cr. Case No. 77/02

Statement of Offence

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

Particulars of Offence

GEORGE BAIREN BECHU and WAME RATUBELO on the 19th day of February, 2002 at Levuka in the Eastern Division broke and entered the dwelling house of Suresh Prasad s/o Ramesh Prasad and stole therein a calculator valued $15.00, a soccer boot valued $25.00, and cash $10.00 to the total value of $50.00 the property of Suresh Prasad s/o Ramesh Prasad.

He pleaded guilty on all counts. The facts were similar on each count. The Appellant, with others broke into each house by removing louvre blades. The only property recovered was the property on Cr. Case No. 69 of 2002. The Appellant was 18 years old and a first offender. He was sentenced on each file to 3 years imprisonment, to be served concurrently.

He now appeals against sentence. He made a half-hearted attempt to challenge his conviction on the ground that he was unrepresented. However, the record shows that he clearly waived his right to counsel, and that he was not prejudiced in any way by lack of representation.

The Appellant submits that he was a first offender, that the property was recovered and that he pleaded guilty at the first opportunity. State Counsel opposes the appeal, saying that the seriousness and prevalence of the offences outweighed the Appellant’s previous good character and youth.

The sentencing remarks of the learned Magistrate do not indicate a tariff, or starting point. Nor do they show that he took into account the mitigation.

As I said in Dravere Ledua -v- State Crim. Ap. No. HAA 014 of 2002, the tariff for house breaking and larceny offences is from 2 to 3 years. The offences on each file were not the most serious of this type of offending, and therefore a starting point of 2 years might have been reasonable. Aggravating features were the fact that items on two counts were not recovered, and that the value was in the range of $1000. An increase of 6 months might have resulted. A considerable discount should then have been given for youth, good character and the plea of guilty, perhaps in the range of 18 months. We would then be left with 1 years imprisonment. Consideration should then be given to a suspension of the sentence. The Appellant is a farmer of Rukuruku Village. It is not disputed that he was not the ringleader in the series of break-ins, or that he did not benefit substantially from the offences. Further, I have said before, and will continue to say, that anxious consideration should be given to giving non-custodial sentences to the young offender, to give him a chance of rehabilitation. The Appellant has now served 5 months in custody. That term of imprisonment, will I hope serve as a salutary lesson to him about the consequences of criminal behaviour.

In all the circumstances, I find that the 3 year term on each count was manifestly excessive. I quash it and substitute it with a term of 1 year, suspended for 18 months.

This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
25th November 2002