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Kunaga v The State [2005] FJHC 106; HAA0055J.2004B (5 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA0055 OF 2004LAB

BETWEEN:

SITIVENI KUNAGA

v.

STATE

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

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

JUDGMENT

This is an appeal against a total sentence. The appellant was convicted of shop breaking, entry and larceny on the 23rd of August 2003. He was charged with breaking into the Courts Homecentres store in Labasa and stealing mobile phones to the total value of $1177.00.

He pleaded guilty to this charge after waiving his right to counsel. The facts were that the appellant, a 22 year old farmer, used an iron club to break the show glass of the store on the 16th of August 2004. He stole the mobile phones and ran away. He was arrested by the Police in Bua, and admitted the offence. He had sold the phones to one Saiyed Abid. The appellant admitted the facts and five previous convictions dating from 1998 when he was still a juvenile. He committed an offence of restaurant breaking in 1999 and of unlawful assembly in 2000.

In mitigation he said he was 24 years old, and was single. In sentencing him the learned Magistrate took into account the plea of guilty, his co-operation with the Police, the recovery of two mobile phones and the seriousness of the offence. He sentenced the appellant to 2½ years imprisonment.

The appellant appeals against this sentence on the grounds that the learned Magistrate failed to put sufficient weight on the plea of guilty and the recovery of the stolen items. He also pointed to the low value of the items stolen.

State counsel opposes the appeal on the ground that the sentence is correct in principle.

The tariff for breaking and entering offences is between 18 months to 3 years imprisonment. Terms at the lower end of the tariff are reserved for petty offences, offenders who play only a marginal role and for young offenders. Suspension of sentences should only be considered for the young first offender. (Tomasi Turuturuvesi v State Criminal Appeal HAA0086.2002S; Mesake Ratabua v State Criminal Appeal HAA0026 of 2004S; Dravere Ledua v State Criminal Appeal HAA0014 of 2002).

The appellant was not a first offender. Nor was his role a marginal one. The learned Magistrate did not state his starting point but I would pick a starting point of 2 years imprisonment. The aggravating factors are the value of the items stolen, the damage to the show glass, the use of the iron bar, the fact that the premises were of a shop and the non-recovery of all the phones. I would increase the sentence to 3 years imprisonment. The mitigating factors were the guilty plea, the remorse and the co-operation with the Police. I would arrive at 18 months imprisonment. In the circumstances I consider the 2½ term to be excessive and I quash it. The sentence is reduced to 18 months imprisonment. This appeal succeeds.

Nazhat Shameem
JUDGE

At Labasa
5th May 2005