IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0034 OF 2003 & HAA0035 OF 2003

Between:

AMINIO BALEDROKADROKA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Ms L. Chandra for State

Hearing: 29th August 2003
Judgment: 5th September 2003

JUDGMENT

The Appellant appeals against sentence on two files. His grounds are essentially the same and I therefore deal with both appeals in one judgment.

On Case No. 1620/02, the charge was as follows:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

AMINIO BALEDROKADROKA, on the 28th day of June 2002 at Lami in the Central Division, by night, broke and entered the dwelling house of KESAIYA AITHESON with intent to commit a felony namely, to steal.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

AMINIO BALEDROKADROKA, on the 28th day of June 2002 at Lami in the Central Division, stole in the dwelling house of KESAIYA AITHESON, chattels, a camera valued at $60.00, wall clock valued at $25.00, safety boots valued at $98.00, ladies slippers valued at $39.00 and assorted clothings valued at $90.00, a value amounting to not less than ten dollars, the property of the said MEREONI NAIVILA, to the total value of $312.00.

On Case No. 1160/03, the Appellant was charged as follows:

Statement of Offence

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

Particulars of Offence

AMINIO BALEDROKADROKA on the 25th day of May, 2003 at Suva in the Central Division broke and entered through the Falo Tyres Liquor Shop and stole therein assorted liquor, cigarettes, CDs and radio cassettes to the total value of $3,786.36, the property of the said Falo Tyres Repairs.

The Appellant pleaded guilty in both cases. The facts on the first file were that on 28th June 2002 the Appellant broke into a house by forcing a window open and stole a knapsack containing the items listed on Count 2. There were two children asleep in the house. When their parents came home they discovered the theft and reported the matter to the police. On the 1st of July 2002, some of the items, valued at $273.00 with the knapsack, were returned to the victims. The Appellant admitted the offence to the police and was charged.

On File 1160/03, the facts were that on 24th May 2003 the Appellant went to the complainant’s liquor shop and drank beer there until 10pm. He then hid in the shop garage until the shop was locked up. The Appellant then broke into the shop, took all the items listed in the charge, hired a taxi and went to Qauia, Lami. He was later interviewed and charged. He told the police that he had drank all the liquor and smoked all the cigarettes with his friends. Nothing was recovered.

The Appellant admitted these facts and five previous convictions, four of which are for offences of dishonesty. He has two robbery convictions.

In mitigation he said he was 29 years old and was married with two children. He expressed remorse and asked for a suspended sentence.

On File 1620 of 2002 the learned Magistrate sentenced him to 12 months imprisonment on Count 1 and to 12 months imprisonment on Count 2. The two sentences are to be served concurrently.

On File 1160, the Appellant was sentenced to 3 years imprisonment. The sentence was delayed because the Appellant had failed to attend court, in breach of his bail conditions. The sentences are to be served consecutive to each other. The Appellant is therefore serving an effective term of 4 years imprisonment in total.

The tariff

The tariff for the offence of house or shop breaking entering and larceny in Fiji is between 2 to 3 years imprisonment. A two year sentence was upheld by this court in Malakai Tuisoba –v- State Crim. App. No. HAA0098 of 2002S. In Dravere Ledua –v- State Crim. App. No. HAA0014 of 2002 a two year sentence was reduced to one year on the ground that the offender’s role in the house-breaking was minimal.

In Eroni Saqayalo –v- State Crim. App. HAA0051 of 2002, Singh J upheld a two year sentence imposed for burglary saying that the sentence was consistent with other sentences passed for the same type of offending.

In the circumstances the Appellant was fortunate to receive a total of 12 months on File 1620/02 and 3 years imprisonment for his later offence on File 1160. The total sentence of 4 years imprisonment reflects the totality (and the persistence) of the offending. The learned Magistrate took into account all aggravating and mitigating circumstances. For these reasons, these appeals are dismissed.

Nazhat Shameem
JUDGE

At Suva
5th September 2003