IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT LABASA

CRIMINAL APPEAL CASE NO: HAA 027 of 2008

BETWEEN:

SAIRUSI VAKASILI

AND

THE STATE

Mr. Malcolm Maitava for Appellant
Ms. Fa’alogo-Bull

Date of Ruling: 26 November 2008.

RULING

1.	Sairusi Vakasili this is your appeal.

2.	You were charged and convicted on one count of Larceny contrary to section 259 and 262 of the Penal Code Cap 17. Your conviction was after you pleaded guilty to the charge.

3.	The particulars of the offence you were charged with states that between the 25th and 27th of September 2006 at Labasa in the Northern Division you stole 2 plants of yaqona valued at $400.00 the property of Subhash Chand s/o Piyare Lal.

Grounds of Appeal

4.	You have submitted the following grounds of appeal:[Court Summary]

i)	I pleaded guilty at the first opportunity I was not given full discount in my sentence;
ii)	Sentence was harsh and excessive since I stole only 2 kava plants;
iii)	In 2 years since I committed the offence I have not committed any crime;
iv)	The value of yaqona when sold was $60.00 and not $400.00

5.	During the appeal hearing you informed the court that there is disparity in your sentence when compared to other cases of larceny of yaqona plants in the Labasa Magistrates’ Court. You were unable to give the court a case reference.

State Submission

6.	In response to the ground submitted by the appellant, the State submits as follows:

i)	the guilty plea was properly discount because this was a guilty that was tendered after 10 adjournments and not at the first opportunity as claimed by the appellant;
ii)	the delay in the Magistrates Court was minimal and it did not cause any prejudice to the appellant’s rights to a fair trial;
iii)	the sentence is not harsh and excessive because of his history as a repeat offender for larceny which carried a sentence of 10 years imprisonment. The starting point of the sentence was 14 months imprisonment which was within the tariff for second or more offenders;

Appeal Determination

7.	I have carefully reviewed the sentence in this case. I am of the view that the guilty plea should have been given a slightly higher discount of 2 months, instead of 1 month imprisonment even though it was not given at the first opportunity. This is so because it nevertheless saved a great deal of time and resources to the court and it is to be encouraged. I would therefore vary the sentence by one month to 9 months imprisonment.

8.	I have reviewed the sentences in the Magistrates Court for Larceny of yaqona plants in the following cases: i) State v Ronald Vikash Singh [2002] FJHC HAA 035 of 2002 and ii) Iowane Waniqolo v The State [2004] FJHC HAA In both these cases for thefts of yaqona plants valued at $1000.00 and $7000.00 respectively the sentence was 6 months in Ronald Vikash Singh and 9 months imprisonment in Iowane Waniqolo. In this case the theft was for yaqona valued at $400.00 yet claimed by the appellant to be valued at $60.00 and the sentence was 10 months imprisonment. 

9.	At the hearing Mr Maitava submitted a recent case in the Labasa Magistrates Court State v Saiasi Tome Criminal Case No: 406/2004, where the sentence was 6 months imprisonment suspended for 2 years, for larceny of 21 yaqona plants.

10.	In consideration of the need to observe parity in sentence for similar offences and the sentences for similar offences in the cases referred to above I would further reduce the sentence to 8 months imprisonment.

11.	All the other grounds submitted by the appellant have no merit and are dismissed.

12.	In conclusion, the sentence passed in the Magistrates Court is set aside and substituted with 8 months imprisonment with effect from 19 June 2008. 

13.	The appellant should be warned that the next time he decide to steal yaqona or any other property belonging to someone else and comes before the court he will be shown no leniency. He should keep his promise to this court that he will reform himself. 

ORDERS

14.	I make the following orders:

i)	the appeal against sentence succeeds;
ii)	the sentence of 10 months imprisonment passed in the Magistrates’ Court is set aside and substituted with 8 months imprisonment effective 19 June 2008.

Isikeli Mataitoga
JUDGE

At Labasa
26 November 2008