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Navara v State [2008] FJHC 313; Criminal Appeal 57.2008 (11 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 57 of 2008

BETWEEN:

AIMONI NAVARA
Appellant

AND:

STATE
Respondent

Date of Hearing: 3rd November 2008
Date of Judgment: 11th November 2008

Appellant appeared in person
Mr. Savou for the Respondent/State

JUDGMENT

1. The Appellant appeals against sentence on his plea of Guilty to the following charges:
   

Larceny contrary to section 259(1) and 262(2) of the Penal Code Cap.17

Particulars of Offence

SAIMONI NAVARA and others in between 6th to 12th day of July, 2007 at Drauniivi, Tavua in the Western Division stole 1187 litres of Diesel valued at $1,733.02 the property of Fiji Pine Limited.

2. The Appellant was sentenced on 15 September 2008 in the First Class Magistrates Court Western Division at Tavua to 18 months and 1 week imprisonment.
   
3. The facts of the case, as outlined by the Prosecution are that on 13 July 2007, when the Plantation coordinator went to fill up his vehicle he discovered that 1187 litres of diesel was missing from the storage tank which was owned by Fiji Pine Limited. After an internal enquiry was conducted by Fiji Pine Limited, it was realised that the missing diesel had not been recorded in the internal fuel register.
   
4. On 25 July 2007, the matter was reported to the Police at Tavua who conducted an investigation. The Appellant, along with 2 other co-accused, were soon arrested. After caution, they each admitted stealing the diesel from the storage tank and using it in other vehicles.
   
5. The Appellant, along with the 2 other co-accused, were subsequently charged with larceny.
   
6. The Appellant was sentenced to 18 months imprisonment. The learned Magistrate found that there were no mitigating factors, and 3 months were added. This brought the sentence to 21 months, with a further discount of 1/10 for his guilty plea. The Appellant was sentenced to 18 months imprisonment and 1 week.
   
7. The learned Magistrate also considered if it was appropriate to suspend the sentence in accordance with section 29 of the Penal Code, Cap 17. However, after taking into account the Appellant’s prior conviction for larceny, he ordered that an immediate custodial sentence be served.
   
8. On appeal, the Appellant said that he had reconciled with the management of Fiji Pine Limited and that they were present at the Appeal. He asked for forgiveness and said that since the trial, full restitution had now been made. He said that like his co-accused, he too should have received a suspended sentence.
   
9. In reply, the State says that this sentence was lenient. It also relies on the Case of Koroi v. The State [2001] FJHC 26; Haa0031j.2001s (18 May 2001) (per Shameem J ) where the Court said:
   

"The maximum sentence set for larceny under section 262 of the Penal Code is 5 years imprisonment. Any person who commits the offence of simple larceny after having been previously convicted of a felony is liable to imprisonment for ten years. The maximum sentence that could have been imposed on the Appellant was ten years imprisonment".

10. Now that full restitution has been made to Fiji Pine Limited, who were present at the Appeal, I am willing to accept this as a mitigating factor which was not available to the learned Magistrate at the time of sentencing.

11. The learned Magistrate appears to have erred in sentencing. It is wrong in principle to find that a previous conviction is an aggravating factor. Further, the learned Magistrate should have given a discount of 1/3 rather than 1/10 from the head sentence for the Appellant’s guilty plea.

12. I therefore take a starting point of 18 months imprisonment. Mitigating factors are that full restitution has now been made, which I consider to be a significant factor in this appeal, along with the Appellants early guilty plea, and his expressed remorse. For the guilty plea, I deduct 6 months. For making full restitution, I deduct a further 4 months. As this is not the Appellant first offence, there can be no question of suspension.

13. This appeal is allowed. I quash the 18 months and 1 week term of imprisonment and substitute it with a term of 8 months imprisonment to run from the 15th September 2008.

Anthony J Sherry
Judge

Lautoka
11th November 2008.