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Vusonitokalau v The State [2005] FJHC 195; HAA0056J.2005S (22 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0056 OF 2005

Between:

FELIX VUSONITOKALAU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Ms P. Madanavosa for State

JUDGMENT

This is an appeal against sentence. The Appellant was charged as follows:

Statement of Offence

HOUSE BREAKING, ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Act 17.

Particulars of Offence

FELIX VUSONITOKALAU on the 14th day of February 2005 at Suva in the Central Division, broke and entered the dwelling house of RAIJIELI BANUVE and stole therein one DVD disc valued at $15.00 the property of the said RAIJIELI BANUVE.

He pleaded guilty on the 16th of February 2005. The facts were that on the 14th of February 2005 at about 12 mid-day he knocked on the complainant’s door. When no one answered he removed two louvre blades from a window and entered the bedroom. The complainant heard the noise of someone in her bedroom and she ran to a police officer’s home to report the matter. The officer returned to her house and saw the Appellant leaving with a DVD in his hand. The complainant who knew the Appellant well, asked him to give the disc back to her. He did so. He also replaced the louvre blades. He was then arrested and interviewed. He admitted the offence.

These facts were agreed to. The Appellant also agreed to eight previous convictions. In mitigation he said his wife was working for a lawyer that he had reconciled with the complainant and was sorry for what he had done.

The Magistrate ordered the complainant to come to court to verify reconciliation. However, she did not appear, either on the 3rd of March, or on the 7th. The learned Magistrate proceeded with sentencing.

She said that the Appellant had not learnt from his past mistakes. He had six similar convictions of house breaking. She said that this was a house invasion because the complainant was inside the house when he broke in. She sentenced him to twelve months imprisonment.

The Appellant submits that this sentence is harsh and excessive because he had reconciled with the complainant. When I asked where the complainant was, he said that she was at school, where she is a student.

State counsel said that the appeal should be dismissed because the sentence was in fact below the tariff for house breaking offences. She referred to the cases of Malakai Tuisoba v. State Crim. App. HAA0098 of 2002S and Leone Ratumaivalu v. State Crim. App. HAA0036 of 2005S to support her submissions.

The tariff for house breaking is two to three years. In this case the Appellant went to the house of a neighbour and acquaintance; and thinking she was not there, broke into it. There is no evidence to suggest that she might have consented to the breaking in. Indeed, she reported the matter to the police and has shown no interest in coming to court to support his mitigation.

The Appellant is still a young man. He is 28 years old. It is a tragedy that since 1993, he has been in and out of prison for offences of breaking and entering. His expressions of remorse carry very little weight when he continues to offend. In this case, he broke into the house of someone who was known to him, and who should have been able to trust him.

The custodial sentence was inevitable. The learned Magistrate did not err in imposing the twelve months sentence. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
22nd July 2005