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Tikoiniusiladi v State [2010] FJHC 131; HAA001.2010 (16 April 2010)

IN THE HIGH COURT OF FIJI

AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 001 of 2010

BETWEEN:

SAKAPO TIKOINIUSILADI
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A. Sen for Appellant
Mr. L Savou for State

Date of Hearing: 14th April 2010
Date of Judgment: 16th April 2010

JUDGMENT

[1] The appellant pleaded guilty in the Magistrates’ Court to an offence of larceny from person and was sentenced to 22 months imprisonment. Initially he appealed against conviction and sentence but at the hearing, the appeal against conviction was abandoned.

[2] The appeal against sentence is based on the ground that the sentence is harsh and excessive.

[3] The facts are that on 9 October 2009 at 10.30am, the appellant was present in a supermarket in which the complainant was shopping. The complainant was an elderly woman. While in the supermarket, the complainant felt someone has taken something out of her handbag. She turned around and saw the appellant walking out of the supermarket with her purse which had $280 cash. The incident was captured by the surveillance camera in the supermarket. The appellant was arrested and interviewed under caution. He told the police that he had deposited the stolen cash in his personal bank account. The money was recovered and returned to the complainant.

[4] The facts disclose an offence of pick pocketing. The tariff for pick pocketing offences is from 12 to 18 months imprisonment. (Poniasi Saulekaleka v The State Criminal Appeal No. HAA050 of 2001S). Suspended sentence is reserved for cases of young offenders or first time offenders.

[5] In the present case, the learned Magistrate quite correctly considered the old age of the complainant as an aggravating factor. The complainant was 56 years old while the appellant was 34 years old at the time of the offence.

[6] The learned Magistrate picked 24 months as his starting point, added 3 months for the aggravating factor and reduced 3 months for the appellant’s personal circumstances and 1 month for the guilty plea. The learned Magistrate said he found no special reason to suspend the final term of 22 months imprisonment.

[7] Although sentencing is not a mathematical exercise, in the present case, the learned Magistrate erred in his approach. The starting point was picked outside the range for this kind of offence. A term outside the tariff should only be picked when exceptional circumstances are present. In this case the learned Magistrate did not record any reason why a starting point outside the range was picked. This was an error. The second error was that the learned Magistrate gave only 1 month deduction for an early guilty plea. In my view at least one third discount was justified in this case.

[8] The mitigating factors were the early guilty plea and the recovering of the stolen cash. The aggravating factor was the vulnerability of the elderly complainant.

[9] Taking all these factors into account an appropriate sentence is 12 months imprisonment. I therefore find the sentence of 22 months imprisonment to be manifestly excessive.

[10] The appellant’s last previous conviction was in 2002. He had been of good behaviour for seven years until he committed the offence in this case. This particular fact gives some hope for the appellant to reform. In this regard I give the principle of rehabilitation of the offender a priority.

[11] I have considered suspending the sentence and in the event decided to do so. I have taken into account that the appellant had served two months of his sentence before bail pending appeal was granted.

[12] The sentence of 22 months is quashed and a sentence of 12 months imprisonment suspended for 2 years is substituted, effective from 16 October 2009. The suspended sentence is explained to the appellant.

[13] In addition the appellant is fined $300.00 to be forfeited from the cash bond he posted for his bail pending appeal.

[14] The appeal is allowed.

Daniel Goundar
JUDGE

At Labasa
16th April 2010

Solicitors:

M/S Maqbool & Co. for Appellant
Office of the Director of Public Prosecutions for State