IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 063 of 2008

Between:

RUSIATE SAINI
Appellant

And:

THE STATE
Respondent

Hearing:	21st November 2008
Judgment:	12th December 2008

Counsel:	Appellant in person
Ms A. Tuiteci for State

JUDGMENT

[1]	The Appellant was charged on one count of larceny and was sentenced to a fine of $200. He appeals against that sentence saying that it is harsh and excessive.

[2]	He was charged, with stealing 10 bottles of Punja’s Ghee on the 28th of April 2008 at Nabua in the Central Division. The ghee was valued at $87.50 and it was the property of Shop and Save Supermarket Nabua.

[3]	At the first call, on the 16th of May 2008, the Appellant waived his right to counsel and pleaded guilty. The facts were that the Appellant, a casual labourer living at Nadonumai Settlement Lami, was seen behaving in a suspicious manner near the shelves at the Shop n Save Supermarket Nabua. An employee saw him picking something from the shelves and putting it inside his bag. When the Appellant came out of the supermarket, the employee checked his bag, found the items and reported the matter to the police. He was arrested and charged.

[4]	These facts were admitted. The Appellant had old convictions which were disregarded. He was treated as a first offender. In mitigation, he said he was 42 years old, married with 2 children, was the sole breadwinner in the family and his wife was recovering from a stroke. The court then asked the Appellant how much he earned and where he worked. He said he was a casual labourer and earned $160 a week.

[5]	The learned Magistrate found that a sentence of imprisonment was not appropriate and considered a non-custodial option. She considered the community work would hinder his employment and chose instead to impose a fine. She imposed a fine of $200 to be paid within 1 month, in default 1 months imprisonment. She also bound him over to be of good behavior in the sum of $100 for 1 year.

[6]	The Appellant commenced his submissions by saying that he could not afford the fine but agreed to community work. Later in the course of the hearing he said he could not perform community work because he was now employed elsewhere at $70 a week and his wife was ill. He asks me to set aside the fine and maintain only the binding over order.

[7]	I consider that the learned Magistrate was entirely correct when she decided that this case warranted a non-custodial sentence. The Appellant is a first offender, and this is a petty theft. The owners recovered their property.

[8]	Furthermore, a fine was appropriate because the Appellant had regular employment and a regular income. The only question was the amount of the fine and the length of the time given to pay it.

[9]	Section 35 of the Penal Code provides for the provision of fines. Section 35(1)(a) provides that the amount of the fine which may be imposed is unlimited, but shall not be excessive. I considered how fines were to be imposed, and the relationship between section 35 and section 23(2) of the Constitution in Sereima Bokadi v. State [2002] HAA 75/02S. Section 23(2) of the Constitution provides that no person shall be sent to prison for non-payment of a fine or a debt, unless he or she is willfully refusing to pay although he or she has the means to pay. In that case, I said that the sentencing court, before imposing a fine should consider regularity of employment, expected and current wages, financial burdens on the offender and other sources of income.

[10]	In this case the learned Magistrate did conduct a means inquiry and on that basis imposed a fine of $200. I do not consider that she erred. However, the Appellant says that he now earns only $70 a week. Although I asked him to produce a pay slip to show that his income was now reduced, he did not do so. Nevertheless I am prepared to accept that he cannot afford to pay $200 within one month. In these circumstances I consider that varying the sentence to allow him 6 months to pay will allow him to pay it at a rate of $33.30 a month, would be a just solution.

[11]	This appeal is therefore allowed to the extent that the period over which he may pay his fine is 6 months from today. He must pay $33.30 every month before the 30th of every month to the Magistrates’ Court Registry until the end of May 2009.

[12]	This appeal succeeds to that extent. The binding over order remains.

Nazhat Shameem
JUDGE

At Suva
12th December 2008