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Vaniqi v The State [2005] FJHC 15; HAA0099J.2004S (28 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0099 OF 2004S

Between:

MANASA RAMASIRAI VANIQI
Appellant

And:

STATE
Respondent

Counsel: Appellant in Person
Mr. Amman Singh for the Respondent

Hearing: 21st January 2005
Judgment: 28th January 2005

JUDGMENT

The Appellant was convicted and sentenced to 18 months imprisonment for the offence of housebreaking, entering and larceny. The charge read as follows:

First Count

Statement of Offence

Escaping from Lawful Custody: - Contrary to section 138 of the Penal Code, Act 17.

Particulars of Offence

Manasa Ramasirai Vaniqi, on the 20th day of July, 2004, at Navua in the Central Division, being in lawful custody of Police Support Officer Number 245 ENERIKO DINAVUSO did escape from such lawful custody.

Second Count

Statement of Offence

Damaging Property: Contrary to Section 324(1) of the Penal Code, Act 17.

Particulars of Offence

Manasa Ramasirai Vaniqi, on the 20th day of July, 2004, at Navua in the Central Division, willfully and unlawfully damaged a pair of handcuff valued $30.00, the property of Fiji Government.

Third Count

Statement of Offence

House Breaking Entering and Larceny: Contrary to section 300(a) of the Penal Code Act 17.

Particulars of Offence

Manasa Ramasarai Vaniqi, on the 19th day of June, 2004, at Navua in the Central Division, broke and entered into the dwelling house of EKA BUADROMO and stole herein one IBM Laptop valued $3,000.00, one Samsung video camera valued $1,000.00, one Nikon camera valued $1,000.00, two Tabua valued $500.00, one handbag valued $30.00 and cash of $230.00, to the total value of $5,760.00 the property of the said EKA BUADROMO.

The Charge was first read and explained to the Appellant on the 23rd of July 2004. On the 6th of August 2004, he pleaded guilty. The facts were that on the 19th of June 2004 the complainant, a doctor living in Navua returned to her house at 8 p.m. and found the items specified in the charge, missing. She reported the matter to the police and on investigations the Appellant was apprehended. $5,000.00 worth of the value of the items was recovered.

These facts were admitted by the Appellant, who also admitted 7 previous convictions. He began offending in 2000 when he was 19 years old. The offences include housebreaking, entering and larceny, damaging property and simple larceny. For all these previous offences he received suspended sentences, and binding over orders.

He tended written mitigation to the Court saying that discount should be given for his pleas of guilty and that he promised not to re-offend.

The learned Magistrate took these matters into account and said that previously, the Courts had shown him considerable leniency. He sentenced the Appellant to 18 months imprisonment to be served consecutively to another.

In case 1797/04, the facts were that on the 20th of July 2004 at Navua, a police officer was searching for the Appellant at Makasoi. He arrested him and escorted him to the police vehicle. The Appellant ran away, went to the Community Hall, and cut the handcuffs with a handsaw. He was later apprehended.

These facts were also admitted by the Appellant. The escaping charge arose directly from the police investigation into the housebreaking case. The learned Magistrate sentenced the Appellant to 6 months imprisonment for escaping from lawful custody and 3 months imprisonment for damaging property, namely the handcuffs.

In total the Appellant is serving a sentence of 2 years and 3 months imprisonment. He now appeals against this sentence. His grounds are that the trial Magistrate failed to put adequate weight on the mitigating circumstances and that the sentence is harsh and excessive.

At the hearing of this appeal, the Appellant said that he had elderly parents whom he supported, that he was trained as a carpenter and that he was determined to reform himself.

It is most unfortunate that since 2000, the Appellant has continued to be the source of grief to his elderly parents by behaving in an irresponsible and unlawful manner. In response to my questions, the Appellant said he offended when he was drunk. Indeed with a skilled trade and regular employment, there was no financial reason for the offending. His conduct is therefore difficult to understand in terms of poverty or financial deprivation.

I also consider that the Courts have shown him a degree of leniency in the past which has given the Appellant the impression that he can continue to offend with impunity. It is time the Appellant took responsibility for his criminal conduct and treated his punishment in prison as a form of accountability.

I consider therefore that a custodial sentence was inevitable in this case. Further the terms of imprisonment on each count are correct in principle, and all within the respective tariffs for those offences. However because the damaging of the handcuffs occurred whilst escaping, the two sentences on File 1797/04 should be served concurrently, but consecutive to be 18 months terms on 1798/04. The total term is therefore 2 years imprisonment.

The appeal succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
28th January 2005