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Matavura v State [2012] FJHC 1365; HAA19.2012 (11 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 19 of 2012
HAA 20 of 2012
HAA 21 of 2012

BETWEEN:

LISALA MATAVURA
Appellant

AND:

THE STATE
Respondent

BEFORE:HON. MR. JUSTICE PAUL K. MADIGAN

Counsel : Mr. S. Babitu for the State
: Appellant in Person

Dates of Hearing : 28 August, 4 September & 24 September 2012
Date of Judgment : 11 October 2012

JUDGMENT

[1] The appellant was sentenced in the Ba Magistrate's Court on the 17th November 2011 in respect of three cases before that Court, which cases comprised six different charges of burglary, theft and giving false information to a public servant. He was sentenced to a total term of seven years and 7 months imprisonment with a six year minimum term. He now appeals that sentence.

[2] The details of the matters he was sentenced for are:

1. CR 370/2011

Count 1 – Burglary, contrary to section 312(1) of the Crimes Decree 2009 [burglary of dwelling house].

Count 2 – Theft, contrary to section 291(1) of the Crimes Decree 2009 [total value $435].

Count 3 – Theft, contrary to section 291(1) of the Crimes Decree 2009 [total value $550].

2. CR 371/2011

Count 1 – Burglary, contrary to section 312(1) of the Crimes Decree 2009 [burglary of a dwelling house].

Count 2 – Theft, contrary to section 291(1) of the Crimes Decree 2009 [total value $167].

3. CR 376/2011
   

Giving False Information to a Public Servant, contrary to section 201(a) of the Crimes Decree 2009 [giving a false name on being interviewed by Police].

[3] The sentences passed were:

[4] In looking at the individual sentences they have been arrived at properly, after due consideration of proper tariffs, aggravating features and mitigating features but in making all of the sentences consecutive, the final sentence arrived at is harsh and excessive. Admittedly the appellant has a very long and unattractive list of previous convictions and the Magistrate saw fit to punish him for that by passing a long term of imprisonment. However a Magistrate, not being able to declare an accused a habitual offender, is not at liberty to vastly enhance a sentence because of a bad record. He is not entitled to credit of course for his record, but the Magistrate should still "stand back" and consider whether a final sentence is excessive or not. This sentence of seven years and seven months for two relatively minor burglaries and a lie to the investigating officer about his name is too much and I quash the sentence and sentence afresh, pursuant to section 256(2) of the Criminal Procedure Decree 2009.

[5] The accused is 54 years old and separated from his wife. At the time of arrest he was unemployed. He has 40 spent previous convictions and 16 current previous. As such and in accordance with my powers under section 11 of the Sentencing and Penalties Decree 2009, I determine that he is a habitual offender.

[6] I adopt the individual sentences passed by the Magistrate but would make the sentences for each case concurrent. In view of the fact that he is a habitual offender and deserving therefore of an enhanced sentence to protect the community, I order that the sentences for the two burglaries be served consecutive to each other, but concurrent to the false information sentences.

[7] The new sentences therefore will be as follows:

So new total sentence to be served is 4 years.

[8] The appellant will serve a minimum term of 3 years and six months before being eligible for parole.

Paul K. Madigan
JUDGE

At Lautoka
11 October 2012