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Raj v The State [2005] FJHC 39; HAM0006J.2005S (25 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM 006 of 2005

Between:

VINESH KRISHNA RAJ
Appellant

And:

THE STATE
Respondent

Hearing: 18th February 2005
Judgment: 25th February 2005

Counsel: Mr. E. Veretawatini for Appellant
Ms V. Lidise for State

JUDGMENT

This appeal was originally set for hearing of an application for bail pending appeal. However, because the court record was ready by the date allocated for hearing, and because both counsel were ready, I proceeded to hear the appeal proper.

The Appellant was charged as follows:

Statement of Offence

LARCENY FROM DWELLING HOUSE: Contrary to Section 270 of the Penal Code, Cap. 17.

Particulars of Offence

VINESH KRISHNA RAJ s/o Rajanna on the 25th day of September 2004 at Nausori in the Central Division, stole one NECHI brand Electric sewing machine valued at $300.00 from the dwelling house of Vina Raj d/o Rajanna.

Plea was taken on the 7th of February 2005. The Appellant pleaded guilty. The facts were that the Appellant and the complainant were brother and sister. They live in the same house. On the 25th of September 2004, while the complainant was away, the Appellant took her electric sewing machine and pawned it at the pawnshop. The complainant reported the matter to the police, the pawnshop was searched and the sewing machine was recovered. The Appellant was interviewed by the police. He admitted the offence. He accepted these facts. He has no previous convictions, he is 22 years old, and is married. He and his sister had reconciled and he expressed remorse. The complainant was present in court (as she was at the appeal hearing) and confirmed that she was the Appellant’s older sister, and that she had forgiven him.

In sentencing him, the learned Magistrate said that the offence was serious and prevalent in Nausori. He said that with a tariff of 1 to 4 years for larceny from dwelling house, he would choose a starting point of 2 years imprisonment. After considering all mitigating and aggravating circumstances, including the abuse of family trust, he sentenced the Appellant to 12 months imprisonment.

The Appellant appeals against the sentence on the grounds that the sentence was harsh and excessive, there was a failure to take into account the plea of guilty and that the sentence ought to have been suspended.

In his submissions, counsel for the Appellant said that the personal relationship between the Appellant and the complainant, and the fact that they had settled their differences should have led to a non-custodial sentence. This was particularly so because the Appellant was a first offender and had pleaded guilty.

State counsel opposed the appeal, saying that the offence was serious, carrying with it, a maximum statutory penalty of 14 years imprisonment. She said that the tariff for house breaking offences was 2-3 years and that a custodial sentence was warranted.

It is quite correct that the tariff for housebreaking entering and larceny cases is 2-3 years imprisonment, with the shorter length sentences reserved for young first offenders who plead guilty (Dravere Ledua Crim. App. HAA0014 of 2002). However, this was not a case of a breaking and entering, or of a home invasion, but of a larceny in a dwelling house. In fact it was of a larceny in the Appellant’s own house. It is comparable to a case of simple larceny, for which the tariff, on first offence, is 2-9 months with non-custodial sentences passed for first offenders.

I consider that the starting point of 2 years imprisonment was far in excess of the seriousness of the offence. A starting point of 6 months imprisonment would have been appropriate.

Taking into account all mitigating and aggravating factors, a sentence of 6 months imprisonment would have been appropriate. Further, because every effort ought to be made to keep young first offenders out of prison, and because the Appellant has reconciled with his sister, the sentence should have been suspended.

For these reasons, this appeal is allowed. The 2 year term of imprisonment is quashed and is substituted with a 6 month term of imprisonment suspended for 9 months. If the Appellant re-offends in the next 9 months, he is liable to have the 6 month term activated and to serve it in prison.

Nazhat Shameem
JUDGE

At Suva
25th February 2005