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Musuvanua v State [2010] FJHC 365; HAA017.2010 (27 August 2010)

N THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA 17 OF 2010

BETWEEN:

ORISI TOLOI MUSUVANUA
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. Kohli - for the Appellant
Ms. Bull - for the Respondent

Date of Hearing: 26 August 2010
Date of Judgment: 27 August 2010

JUDGMENT

1. The appellant was charged as follows.

Statement of Offence

BURGLARY: Contrary to section 312(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ORISI TOLOI MUSUVANUA with another between 4th day of February, 2010 and 5th day of February, 2010, at Labasa in the Northern Division, entered into the office of Parmod Enterprises Limited as a trespasser, and stole from therein a Compaq brand laptop, Samsung brand digital camera, a blackberry phone charger, Sony brand radio and cash amounting to $2460.00, the property of PARMOD CHAND.

2. The appellant, on the 19th February 2010 when the matter was called before the Magistrates Court of Labasa, pleaded guilty to the charge and sentenced to 3 years imprisonment.

3. The appellant preferred an appeal out of time and the period of appeal was enlarged.

4. The appellant submitted following grounds of appeal through his Counsel.

1. That the sentence is harsh and excessive and inconsistent with other sentences handed out by the same Court for similar offences.
   
2. That the sentencing is wrong in principle.
   

100. That the Labasa Magistrate's Court had in similar offences in the past handed out suspended sentence.
     

5. Appellant and his Counsel are not challenging the conviction, after perusing the Magistrate's Court record I am convinced that the conviction is unequivocal.

6. Now I consider the first ground of appeal. The appellant submitted that the sentence is harsh and excessive and inconsistent.

7. Now I consider the tariff.

Under the now repealed Penal Code, the maximum penalty for burglary was life imprisonment, though the tariff was between 18 months to 3 years imprisonment, with "the question of suspension being reserved for the young offender, or first offender." See Turuturuvesi v The State [2002] FJHC 190; HAA0086J.2002S (23 December 2002), per Shameem J; Mesake Ratabua v State Criminal Appeal HAA0026 of 2004S; Dravere Ledua v State Criminal Appeal HAA0014 of 2002); also State v Mucunabitu [2010] FJHC 151; HAC017.2010 (15 April 2010), per Madigan J.

8. Considering the above case, I consider the offence is serious but considering the age, this is the first offence of the appellant on other circumstances I feel this sentence is excessive.

9. Now I consider the second ground of appeal. The sentencing is wrong in principle. Considering both Counsels submissions, I do not find that the Learned Magistrate had erred in law in sentencing. Therefore I find that this ground fails in its own merits.

10. The third ground of appeal is that the learned Magistrate has handed down suspended sentence in similar cases. Sentencing is done after considering the merits of individual cases. One cannot complaint that he should be given a sentence similar to another case. Every case is considered on its own merits therefore this ground of appeal also fails.

11. Now I consider the first ground of appeal, I am mindful of the judgment Justice Winter in Chand vs the State (2004) FJHC 125; HAA 0066.2004 (4 August 2004).

"As I have said in other decisions on a sentence appeal it is wrong in principle to "fiddle" with a sentence by partial reduction simply because it doesn't seem fair. The correct approach is to consider whether it is harsh and excessive. If I cannot be persuaded that is so, then the duration of the penalty must be left intact."

12. In Moki vs The State (1990) FJHC 31; HAA 0058J.90S (8 March 1990). Justice D.V. Fatiaki imposed a suspended term for a first offender who committed the offence of burglary.

13. In Vakoro vs The State (1996) FJHC 16; HAA 005J.1996B. (22 May 1996) Justice Fatiaki decides as follows:

"I have carefully considered all that has been urged in the appellant's favour and whilst I entirely agree with the learned trial magistrate that a custodial sentence is inevitable nevertheless like learned State counsel I am of the opinion that the sentences are somewhat on the high side for a first-time burglary without aggravating features."

14. In Waqa vs State (2010) FJHC 27; HAA 061.2009 (5 February 2010) Justice P. Madigan has imposed 2 years for an offence burglary.

15. Considering all above decided cases, I am of the view that the sentence of 3 years is little excessive therefore I replace the term of 3 years to a term of 2 years. The appellant is a first offender and a youth who has not completed his education fully therefore, I act under Rule 26(2) (a) of the Sentencing and Penalties rules and suspend the sentence for 5 years.

16. The appellant's sentence is suspended for 5 years and he is explained of the nature and gravity of the suspended sentence.

17. Subject to above variation the appeal is dismissed.

S. Thurairaja
JUDGE

Solicitors: - Mr. Kohli for the Appellant
- Officer of the Director of Public Prosecutions for State