CRIMINAL APPEAL No. 78 of 1977
JUDGMENTThe appellant was, on his own plea, convicted by the Mahe Magistrate’s Court Suva on three counts:
(i) Sheaking, entering and larceny contrary to section 333(a) of ) of the Penal Code.
(ii) Unlawful use of a motor car vehicle contrary to section 325 of the Penal Code.
(iii) Also unlawful use of a motor vehicle contrary to section 325 of the Penal Code.
He was sentenced to 15 months’ imprisonment on the first count and 3 months imprisonment on the second and third counts, all
sentences to be served consecutively.
He appeals against his conviction and sentence.
According to the facts outlined in Court, a group of young men of whom the appellant was one approached a parked car at night and
opened it. The appellant got behind the steering while the others pushed it. They were, however, disturbed in the process, left the
car and run away. In another street they found another car and appellant again got in behind the steering wheel. This time they managed
to get the car started and drove to a jeweller shop which the others broke into while the appellant remained behind the steering
wheel. The car was used as a "get-away" vehicle after the larceny and was later abandoned in Malcolm Street, the appellant,
when apprehended, admitted the offence and assisted the police with their investigation.
Those facts, outlined by the prosecution, were admitted by the appellant who was represented by an experienced counsel. I cannot see
any ambiguity, or room for misunderstanding, either in the charges as laid or in the facts as outlined.
That being so, the appellant is prevented by section 290(1) of the Criminal Procedure Code from raising the issue of guilt at this stage. In any case, I see nothing in the arguments offered by the learned counsel for the
appellant which would warrant the upsetting of the order of conviction. The appeal against conviction is, therefore, dismissed.
As for the sentence the learned Acting Director of Public Prosecution concedes that the sentences on the second and the third counts
should have been made concurrent with that on the first count. He does submit, however, that the sentence on the first count should
have been higher.
The learned author of " Principles of Sentencing" states at page 169:
"A second group of offences of taking and driving are those committed incidentally to a much more serious offence, most commonly
where a car is taken for use in connection with a robbery. In this kind of case, a sentence is normally passed concurrently with
a much longer sentence on the principal count and has no real effect on the offender."
The sentences passed on the second and third counts remain undisturbed but they will be served concurrently, and not consecutively,
with the sentence on the first count. Under the circumstances of this case I will not enhance the sentence on the first count. To
this extent the appeal against sentence is allowed.
G. Mishra
Acting Chief Justice
Suva,
30th September, 1977
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