IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0132 of 2005S

Between:

FERETI LIDISE; and
VULI ULUDOLE
Appellants

And:

THE STATE
Respondent

Hearing: 20th January 2006
Judgment: 10th February 2006

Counsel: Appellants in Person
Ms J. Tuiteci for State

JUDGMENT

The Appellants were charged on one count of shop breaking entering and larceny. The charge read that on the 1st of June 2005, they broke into the shop of Samisoni Tale, at Dakuilomaloma, Vanuabalavu and stole items to the total value of $24.90.

At first call, on the 12th of August 2005, they pleaded guilty after the charge was explained to them. The facts were that the owner of the shop left the shop to attend church at 6pm. When he opened for business at 6am the next day, he discovered that tinned food was missing. He reported the matter to the police. Under caution, the Appellants admitted committing the offence.

These facts were admitted. The Appellants had one previous conviction each. They were sentenced to 12 months imprisonment each, to be served consecutive to the 12 month term they were each serving for a similar offence. In effect, they serve a total sentence of 2 years imprisonment each.

Their appeal is against sentence alone. Their grounds are that they were not given time to take legal advice, that their guilty pleas were not taken into account nor their previous good character. They also submit that they were prejudiced by lack of representation because of their limited education.

State counsel opposes the appeal on the grounds that the sentence passed was within the tariff of 2 to 3 years, that all relevant mitigation was taken into account because the sentence was in fact at the lower end of the tariff. She accepted that the Appellants were young but said that the offence was so serious that a custodial sentence was justified. She referred to decisions of the High Court in Jese Toduadua v. State Cr. App. 51 of 1992 and Pita Seruvatu v. State Cr. Appeal 6 of 1996 to support her submissions that offences of breaking and entering must inevitably lead to custodial sentences.

In the course of the appeal hearing the Appellants said that they wanted their sentences reduced because of their good character and guilty pleas. The 1st Appellant is a 21 year old farmer, who was educated up to Form 3 level. The 2nd Appellant is 18 years old and said he committed the offence as a result of peer pressure. Both Appellants said that they understood the nature of the appeal proceedings, and wanted their sentences reduced. They have now served 6 months of their two year terms.

Having perused the court record I find that the charge was explained to them and that they understood it before pleading. They also understood the facts and agreed to them. I do not consider that they were prejudiced by lack of representation.

As for sentence this is not a case which falls into the more serious category of breaking and entering. The value of the stolen items was small, and there was no evidence of the extent of the break-in. I was told from the bar table that the earlier incident of offending was of a similar grade of seriousness, and was also a case of larceny within the village. Clearly, the Appellants have not endeared themselves to their own community on Vanuabalavu. The stealing from a village shop, which operates to an important extent on trust and co-operation within the community, was a serious matter.

The tariff for breaking and entering offences is 2 to 3 years. Thus a total of two years for two offences of breaking and entering is not wrong in principle. However, I am not persuaded that any weight was put on previous good character (prior to Case No. 1519 of 2005) or on the guilty pleas. A 2 year term is manifestly excessive in the light of the totality of the offending.

I therefore allow the appeal and order that the sentence of 12 months imprisonment be reduced to 9 months and be served concurrent to the 12 month sentence imposed in Case No. 1519. In effect the Appellants will now serve 12 months imprisonment. This reflects their ages, their previous good character and their guilty pleas. This appeal is allowed.

Nazhat Shameem
Judge

At Suva
10th February 2006