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Labalaba v State [2002] FJHC 285; HAR0004.2001S (15 March 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL REVISIONAL JURISDICTION

CRIMINAL REVISION NO: HAR0004 OF 2001S

Between:

EPELI LABALABA
Applicant

And:

THE STATE
Respondent

Applicant in Person
Mr M. Korovou for Respondent

Hearing: 12th March 2002
Judgment: 15th March 2002

JUDGMENT

The Applicant Epeli Labalaba was sentenced to two years imprisonment by the Suva Magistrates’ Court, on the 26th of October 2001. He now applies for a review of his sentence on the ground that his sentence was wrongly ordered to run consecutively to sentences then being served.

The Applicant was charged and convicted of the following offence:

Statement of Offence

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

Particulars of Offence

EPELI LABALABA, VILIAME SERU and PENIJAMINI DAVETAWALU alias PENI DAVETA, between the 06th day of October 2001 and the 08th day of October 2001, at Navua in the Central Division, broke and entered the FIRST STEP SUPERMARKET and stole therein assorted liquor valued at $3,177.18, assorted cosmetics valued at $750.00, shaving gears valued at $450.00, groceries valued at $450.00 and 82 tinned Beef valued at $191.19, to the total value of $5,018.77, the property of FIRST STEP SUPERMARKET.

He pleaded guilty and admitted the facts when they were outlined by the prosecutor. The facts were that on the 8th of October 2001, the Manager of the First Step Supermarket opened his shop to find it had been broken into, and items to the total value of $5,018.77 missing. On a search, items worth $263.93 were found at the house of Penijamini Davetawalu (the 3rd Accused in the Magistrates’ Court). All three offenders admitted committing the offence. The Applicant admitted 13 previous convictions, and mitigated, saying he was a 26 year old farmer and was supporting his father and sister.

The 1st and 2nd Accused were then sentenced to two years imprisonment to be served concurrently with sentences on Court file 216/01 for a similar offence at the same Supermarket between the 1st and 3rd of September 2001. The total value of the items stolen in the September break-in, was $6,670.00.

However, the Applicant in this review was given a two year term without an order that it be served concurrently to any term then being served, although he was not a co-accused on Court File 216/01. Thus the Applicant’s complaint.

State Counsel submitted that the two year term was not wrong in principle and that the sentence should not be varied.

However, it is not clear that the Magistrate did specifically order that the Applicant’s term be served consecutively to any term being served. It is possible that he was not aware that the Applicant was then serving a term of imprisonment extra-murally for offences committed in 2000. It appears that he did not enquire whether the Applicant was a serving prisoner.

The effect of the sentence passed was that the Applicant’s sentence ran consecutive to his previous sentence, and his co-accused’s sentences ran concurrently. There seems to be no reason, on the facts as outlined by the prosecutor, why this should be so. Although his co-accused were fortunate to receive concurrent sentences given the fact that the earlier break-in was a separate incident and called for consecutive sentences, there appear to be no grounds for treating the Applicant more severely.

As such I order the sentence of two years imprisonment be varied to run concurrently to any term of imprisonment then being served by the Applicant. It will therefore be deemed to commence on the 26th of October 2001.

At the hearing of this application, the Applicant further pleaded for a reduction of the two year term. I consider that the length of his sentence is neither manifestly excessive, nor wrong in principle. I decline to vary the sentence in any way, other than to order that it be served concurrently.

Nazhat Shameem
JUDGE

At Suva
15th March 2002