Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Talim v The State [2003] FJHC 165; HAA0059J.2003S (23 December 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0059 OF 2003S

Between:

MOHAMMED TALIM; and
ASGAR ALI
Appellants

And:

THE STATE
Respondent

Counsel: Mr. E. Veretawatini for Appellants
Mr. N. Lajendra for State

Hearing: 5th December 2003
Judgment: 23rd December 2003

JUDGMENT

This is an appeal against sentence. The Appellants were sentenced on the 19th of September 2003 for the following offence:

Statement of Offence

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

Particulars of Offence

MOHAMMED TALIM s/o Gani Mohammed and ASGAR ALI s/o Gulam Hussain between the 16th day and 18th day of July 2003 at Nasoni, Tailevu in the Central Division broke and entered into the shed of one GANI MOHAMMED s/o Mahaboob Khan and stole from therein 1-40HP boat engine brand Johnson value at $5,000.00, 1-40HP boat engine brand Marina Mercury valued $5,000.00, 2-benzine tank valued at $300.00 and 2-fitting hose valued at $150.00 all to the total value of $10,150.00 the property of GANI MOHAMMED son of Mahaboob Khan.

The grounds of appeal were:

(a) That the sentence passed by the learned trial Magistrate is not consistent with the charge and is harsh and excessive in any event.

(b) That the Appellants were prejudiced by the fact that they were not legally represented at the plea taking hence, there has been a substantial miscarriage of injustice.

(c) That the learned trial Magistrate failed to take into account the Appellants plea of guilty.

(d) That the learned trial Magistrate failed to take into account that a suspended sentence ought to have been given in the case taking into account the antecedents of the Appellants.

(e) That the learned trial Magistrate failed to take the mitigating factors as advanced by the Appellants counsel at the sentencing, hence there has been a substantial miscarriage of justice.

At the hearing of the appeal counsel said that he would proceed with appeal against sentence only. In particular he said that if the Appellants had been represented by counsel, the mitigation would have been more informative, particularly in relation to reconciliation between the complainant and the Appellants.

The charge was filed on the 8th of August 2003. The case was called in court on the 14th of August 2003. The Appellants were advised to instruct counsel. On the 11th of September 2003, the Appellants waived their right to counsel and said that they want to plead guilty “after the complainant was in court and clarified this issue.” They both pleaded guilty and again said they did not wish to be represented by counsel.

The facts were that the complainant is the 1st Appellant’s father. On the 18th of July 2003, the complainant checked his shed and found missing two boat engines, valued at $10,000, a benzine tank valued at $300.00 and 2 fitting hoses valued at $150. He reported the loss at the Korovou Police Station. On investigation, it was found that a carrier DL 926 was seen outside the complainant’s house between 1am and 2am that morning. When the driver was located he told the police that the two Appellants had stolen the items. The Appellants were interviewed and charged. They admitted these facts. They are both first offenders.

In mitigation the 1st Appellant said that he was 50 years old and married with 3 children. He is a cane farm labourer. He said he had stolen the items from his father but that he had reconciled with his father. All the items had been returned to him.

The 2nd Appellant is 37 years old, and is married with 5 children. He too was a cane cutter and accompanied the 1st Appellant for the commission of the offence. The 1st Appellant is married to the 2nd Appellant’s sister. He expressed remorse and said that some items had been returned.

The learned Magistrate sentenced on the 19th of September 2003. On that date Mr. Veretawatini appeared and asked for the guilty pleas to be vacated. The learned Magistrate refused to set the pleas aside, saying that the Appellants had waived their right to counsel after they had been told of the right. He then proceeded to sentence. He said that shed-breaking entering and larceny is a serious offence, carrying a maximum sentence of 14 years imprisonment. He found that both Appellants had planned the offence, and had executed it at night. He found that this was not a “borrowing” for a fishing trip because the Appellants stole two boat engines and travelled at night to avoid discovery. He took into account the guilty pleas, good character and recovery of the stolen items. He started at 3 years imprisonment and after adjusting for mitigating and aggravating factors sentenced both Appellants to 9 months imprisonment.

In relation to ground (b) I do not consider that counsel’s appearance would have made any appreciable difference to the sentence passed. In his submissions at the hearing of the appeal, counsel gave no further information to the court which might have reduced the sentence. The complainant was not present in court and counsel simply relied on the mitigation already on the court record. I do not accept therefore that the Appellants were prejudiced by lack of representation. Ground (b) is dismissed.

The tariff for offences under section 300 of the Penal Code is 2-3 years. In Wapole Talemaitoga –v- State Crim. App. No. HAA0003 of 2003S I found that an 18 month sentence for store-room breaking entering and larceny was not wrong in principle. The appellant in that case had a list of previous convictions and the value of the items stolen was $2,100.00. In James Stolz & Others –v- State Crim. App. HAA0050 of 1999, four year terms for office-breaking entering and larceny were reduced to two years by Fatiaki J, who found that insufficient weight had been given to the guilty pleas and the recovery of the stolen goods. In Epeli Labalaba –v- The State Crim. Rev. HAR0004 of 2001S, the appellant was sentenced to two years imprisonment for the offence of shop-breaking entering and larceny. He had pleaded guilty and the value of the items stolen was about $5000. He had 13 previous convictions. The sentence was not reduced although it ran concurrent to any other sentence being served.

In Filipe Delana –v- State Crim. App. No. HAA0015 of 2003, the applicant had been sentenced to 12 months imprisonment for the offence of housebreaking entering and larceny. The value of the items stolen was $3000, the applicant had a list of previous convictions and he was a repeat offender in respect of the offence. The applicant was refused leave to appeal. In Josevata Nakidi –v- The State Crim. App. No. HAA0007 of 1998 a 12 month sentence for house breaking entering and larceny, was upheld by Pathik J. The appellant was only 18 years old. His Lordship declined to reduce the sentence.

These cases reveal that although the tariff for house/shed/shop/storeroom breaking entering and larceny is between 2 to 3 years, the courts have sometimes imposed lower sentences (from 12 to 18 months imprisonment) where the offender is young, a first offender or where the items have been recovered.

In this case, the Appellants are not young, although they are first offenders. Further, they stole from a close relative. In the 1st Appellant’s case he stole from his aged father. The offending was a grave breach of the trust which ought to exist between parents and their children. It is not surprising that the complainant has agreed to forgive his son and his accomplice. Parents are usually quick to forgive their children. However the courts have a duty to pass sentences which show society’s disapproval of such conduct. The planning, the breach of trust and the value of the items stolen, all called for a custodial sentence. A starting point of 3 years imprisonment was quite appropriate. The learned Magistrate appears to have given substantial discount for the guilty pleas, good character and reconciliation. Another court might not have been inclined to impose a sentence less than 12 months imprisonment. Certainly a suspended sentence, despite good character, is not appropriate for an offence of this nature.

I therefore find that the 9 month term was not excessively long, nor wrong in principle.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd December 2003