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Jitoko v The State [2005] FJHC 448; HAA0106J.2005S (21 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0106 - 109 of 2005S

Between:

ASIVOROSI JITOKO
Appellant

And:

THE STATE
Respondent

Hearing: 14th October 2005
Judgment: 21st October 2005

Counsel: Appellant in Person
Ms K. Bavou for State

JUDGMENT

This is an appeal against the cancellation of probation orders, made in Criminal Cases 356/04, 357/04 and 358/04, and the substitution of a total of 30 months imprisonment. The Appellant is now 17 years and 10 months old. At the time of the offending he was a juvenile.

The Appellant was originally charged with three offences of shop-breaking and house-breaking. In Case No. 357/04 (Crim. App. HAA0107 of 2005) he with two others were charged with stealing $701.00 worth of items from Fashion House Shop after breaking into the shop on the 13^th of January 2004. He pleaded guilty. He was then 16 years old, and said he had committed the offence because of peer pressure. He was a first offender. He was placed on probation for 2 years.

In Case No. 358 of 2004 (HAA0108 of 2005) he was charged with shop breaking entering and larceny with one other. He was alleged to have broken into the Morris Hedstrom Supermarket between the 7^th and 8^th of January 2004, and stole items there to the total value of $1442.15. Most of the items were bottles of liquor. He pleaded guilty on the 12^th of February 2004 and was convicted. He was placed on probation.

In Case No. 356 of 2004 (Crim. App. HAA0106 of 2005) he was charged with shop breaking entry and larceny. The Appellant with two others were alleged to have broken into the Jamm Amusement Centre and stole items to the total value of $834.00 on the 13^th of January 2004. He pleaded guilty and was convicted. After hearing mitigation, he was sentenced to probation.

On the 30^th of April, the cases were called before the learned Magistrate for review of probation. The probation officer said that the Appellant was not co-operating and that his parents had shown no interest in him or the terms of the probation. A bench warrant was issued for the Appellant and his parents. The case was called on the 26^th of May 2004. The Appellant was then remanded in custody at the Boys’ Centre.

In Case No. 914/04 (Crim. App. HAA0109 of 2005), he was charged with two others (not the same as the two on the previous file) with breaking into the house of Maraia Ravula and stealing items to the total value of $633.00 between the 31^st of March and the 3^rd of April 2004. He pleaded guilty and admitted the previous convictions. His father Joji Tavo was present and asked the court for leniency, saying that his frequent absences from home as a result of his job as a seaman, was partly to blame.

The Appellant then escaped from the Boys’ Home. When he was finally arrested, he was sentenced, on the 19^th of April 2005, to 18 months imprisonment. On the same day, his probation was cancelled under sections 5 and 6 of the Probation of Offenders Act. In substitution, he was sentenced to 12 months imprisonment in Criminal Case No. 358/04, 9 months imprisonment in Criminal Case No. 357/04, and 9 months imprisonment in Criminal Case No. 356/04. All sentences were to be served concurrently but consecutive to the 18 month term imposed in Criminal Case 914/04. The learned Magistrate also ordered the Appellant’s father to forfeit to the State $500, which was the Appellant’s good behaviour bond.

The Appellant submits that this total sentence is harsh and excessive. The State opposes any reduction of the sentence. To assist me in this appeal I called the Probation Officer Ms Devi to court to advise me as to the terms of the order. She stated that the Appellant had not attended the interviews, had not been present at home for her home visit, that he was not enrolled at the Lami High School where he had promised the Court he would attend school and had not co-operated with the Probation Officer in any way. Further, the Boys’ Home had reported that the Appellant was a disruptive influence on the other boys and had run away, taking other boys with him.

I also called his parents to court. They both said that the Appellant was well-behaved at home but that he behaved badly in the company of other boys in the village.

In imposing the probation order for Files 356, 357 and 358 of 2004 the learned Magistrate was clearly determined to keep the Appellant out of an institution and in a school and home environment. It was an opportunity for the Appellant to reform himself and to focus on important goals for his life. He missed this opportunity. His record of offending shows that he offended four times, on each occasion with different boys. This suggests that he was indeed the main offender, and that he is the disruptive influence on the other boys. His record at the Boys’ Home confirms this.

In those circumstances, the learned Magistrate had no option but to cancel the probation order. His parents are evidently unable to control him. He has not attended school and was not enrolled at the Lami High School despite promises to the court that he would attend. He re-offended whilst on probation and committed yet another breaking and entry offence.

The 12 month total sentence is not harsh, given the Appellant’s total lack of co-operation from the very commencement of his 2 year probation. Nor is the 18 month sentence harsh and excessive, for house-breaking. Indeed the sentence falls into the lowest end of the tariff, presumably to reflect his youth, and guilty plea. Nor is the total term of 30 months imprisonment excessive for 4 different incidents of breaking and entry.

As I explained to the Appellant in court, he now needs to take stock of his life and his future. Perhaps this period of incarceration will allow him to reflect on the direction his present conduct is leading him. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
21^st October 2005