IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 014 OF 2011

BETWEEN:

DEO CHAND
Appellant

AND:

STATE
Respondent

Counsel: Mr. A. Sen for the Appellant
Ms. M. Fong for the State

Date of Hearing: 26, 29 July and 31 August 2011
Date of Judgment: 31 August 2011

JUDGMENT

1. On the 7th day of February 2011 in the Magistrates Court at Labasa, the appellant was convicted of one count of house breaking entering and larceny from dwelling house "contrary to Section 300(a) and 270 of the Penal Code, Cap 17" and was sentenced on the 10th February 2011 to three years for breaking and entering and to four years for larceny.

2. The appellant filed his appeal against conviction and sentence one day later on the 11th February 2011. His grounds of appeal pray:

(i)	That the learned Magistrate refused to accept his written submissions before conviction.

(ii)	The evidence was insufficient, and there remained reasonable doubt.

(iii)	The sentences were harsh and excessive.

3. The facts of the case were that on the 10th January, 2010 the accused broke and entered into Chandrika Prasad's dwelling house and stole assorted items including a bicycle, a Sony laptop, wrist watch, a mobile phone and 3 chargers, and a chicken. These items, apart from the chicken were voluntarily delivered up by the appellant to the Police when they went to his home to enquire about the incident. He made admissions at home, and at the Police Station in a cautioned interview. He was at the time being advised by his legal counsel, Mr. Sen. The Magistrate after a proper enquiry ruled the interview to be admissible in evidence. On the strength of the interview and on the doctrine of recent possession the accused was convicted. 
 
4. The appellant's ground of appeal that the evidence is insufficient, that there was no identification parade, and that there was no witness to his entering the house is plainly unarguable. This ground of appeal fails.

5. It is not very clear from the record as to what submissions were or may have been refused by the Magistrate. The appellant appears to have been very prolific with his submissions to Court. There being filed (a) an application to change the Magistrate, and (b) a submission on no case to answer. Very oddly there is no submission from the appellant on conviction, nor in mitigation, when he has been at pains to file submissions on every other point. The Court record on the 29th December 2010 merely states "Court – prosecution submission on file" and makes no reference to a defence submission. It is quite possible that his submissions might have been refused. With no reason given, this Court must accept the Court record as it is and judge this appeal on its merits.

6. The Magistrate has convicted the appellant after a very detailed analysis of the evidence before him. He has made no error of law, nor has he relied on inadmissible evidence. The evidence against this appellant was overwhelming and his appeal against conviction must be dismissed.

Sentence 
7. Sentence however is a very different story indeed.

8. The sentences passed in this case represent a miscarriage of justice; the Magistrate appears to have passed appropriate sentences for house breaking and for larceny and on that simple formula they appeal against sentence would have to fail HOWEVER a ground of appeal not made by the appellant and indeed not alluded to by either counsel is this:

The appellant was charged with one offence yet he was sentenced for two.

9. The charge in the lower Court reads as follows:

Statement of Offence

 Housebreaking, Entering and Larceny from dwelling house: - Contrary to Section 300 (a) and 270 of the Penal Code, Cap 17.

Particulars of Offence

 Deo Chand, on the 12th day of January 2010 at Lajonia, Labasa in the Northern Division broke and entered into the dwelling house and stole from therein one Glory brand bicycle valued at $258.00, one Sony brand laptop valued at $800.00, one silver wrist watch valued at $75.00, one Nokia brand mobile phone valued at $149.00, three Nokia charges valued at $35.00, one chicken No. 14 valued at $9.83 and one flip-flop valued at $5.00, all to the total value of $1,463.83 the property of Chandrika Prasad.

10. Strictly speaking there is no offence of housebreaking entering and larceny from dwelling house - it does not exist in the Penal Code, however there is an offence of "housebreaking entering and committing felony" created by Section 300(a) which section the prosecution are obviously seeking to charge, the felony being larceny. My research shows me that an offence of "housebreaking entering and committing felony, namely larceny" was often charged in the lower Courts, the charge being laid under Section 300(a). It would have been much more appropriate in this case to have the charge worded in that way, without reference to Section 270, larceny.

11. Unfortunately, following on from this unhappy wording of the statement of the offence, the Magistrate has sentenced the appellant for;

1) housebreaking, and

2) larceny 

 which is most unjust. The accused has been charged with one charge and should receive one appropriate sentence.

12. Neither the appellant, nor either Counsel, raising this ground of appeal, it is incumbent on the Court to deal with it. In the case of Grahame Bruce Southwick Crim App AAU0020 of 1996, the Court said that any appellate Court can entertain any matter however arising in order to set the error right.

13. Thus I now do, despite the point not being raised, however I do note that counsel for the appellant has in his very late submissions properly raised the issue.

The charge as laid, although not well phrased can be justified as a charge under Section 300 (a) that is to say a breaking and entering to commit a felony, namely larceny, and the deletion of reference to Section 270 is not prejudicial to the appellant. What of course is highly prejudicial to the appellant is the fact that he was erroneously sentenced for the crime of larceny when he was never charged for the offence.

14. The larceny sentence of four years is quashed. The housebreaking sentence still stands. It is a perfectly appropriate sentence. From the three year sentence, I deduct 12 months for the time he spent in remand in 2010 and his final sentence will now be two years.

15. I make no order for a minimum term of imprisonment, however in view of the fact that he had 46 previous convictions nearly all of them for burglary or larceny, I declare him to be an "HABITUAL OFFENDER" pursuant to Section 11 (1)(c) of the Sentencing and Penalties Decree 2009. That means that if he comes before any Court again, and that includes the Magistrates Court, he may receive enhanced and consecutive sentences.

Paul K. Madigan
Judge

At Labasa
31 August, 2011