IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA0001-002 OF 2005LAB

BETWEEN:

WAISAKE RATUDINA

v.

STATE

Hearing: 4th May 2005
Judgment: 5th May 2005

Counsel: Mr. D. Goundar for State.
In Person for Appellant

JUDGMENT

The appellant was charged on two separate files of shop breaking entering and larceny and office breaking entering and larceny. He was represented by counsel and pleaded guilty to the offences on the 17th of September, 2004. The facts were that between the 11th of September 2004 and 12th of September 2004, he broke into the Classic Video and Music Center and stole items to the total value of $6,180.00. He was very drunk at the time of breaking in and used a hacksaw and pinch bar to gain entry through the rear door. The items were later recovered. In Case No. 357/2004, on the same dates, he broke into the office of the Labasa Local Woods and Hardware Office and stole tools and equipment to the total value of $2390.00. He removed louver blades to gain entry. $2240.00 worth of items were recovered as a result of the appellant’s confession to the Police.

These facts were admitted, as were 10 previous convictions for offences ranging from larceny from person to shop breaking. In mitigation, counsel said that the appellant was 37 years old, married with 4 children and sold yaqona for a living. He said that he committed the offences whilst under the influence of alcohol. He asked for a suspended sentence.

In his sentencing remarks the learned Magistrate took into account all mitigating and aggravating factors. He identified the tariff (2-3 years) and picked 2 years imprisonment as his starting point. He considered the appellant’s record in some detail including the number of chances given to him to rehabilitate himself. He found the appellant to be a habitual offender and sentenced him to 22 months imprisonment on each file to be served concurrently with each other.

The appellant appeals against his total sentence on the ground that it is harsh and excessive given his mitigation. State counsel disagrees saying that it was correct in principle. I agree.

The tariff for breaking and entering offences is between 18 months to 3 years. The appellant’s sentence falls into the lower end of the tariff. He was fortunate to receive this sentence given his record and the manner in which he effected the break-ins. The sentence is correct in principle, and is not harsh. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Labasa
5th May 2005