Tukana v The State [1990] FJHC 1; Haa0064j.89s (2 January 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 64 OF 1989

Between:

EPELI TUKANA
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. S. Seneratne for the Respondent

JUDGMENT

The appellant was convicted on his guilty pleas to the following offences:

"First Count

Statement of Offence (a)

BURGLARY: Contrary to section 299 (a) of the Penal Code Cap. 17 & LARCENY contrary to section 270 of the Penal Code Cap. 17

Particulars of Offence (b)

EPELI TUKANA, between the 1st day of January, and 31st day of March 1987, at Navua in the Central Division, by night did break and entered the dwelling house of CINDY KOPKIE, with intent to steal therein and did steal therein one Sony Radio Cassette valued at $490 the property of CINDY KOPKIE.

Second Count

Statement of Offence

LARCENY: Contrary to section 262 of the Penal Code Cap. 17.

Particulars of Offence

EPELI TUKANA, on the 25th day of March, 1987, at Navua in the Central Division, stole assorted clothings valued at $39.00 and one bottle of Australian perfume valued at $10.00 all to the total value of $49.00, the property of unknown person. "

Upon his conviction on the 29th of March 1989 the appellant was sentenced to 18 months imprisonment on the 1st Count and a concurrent term of 12 months imprisonment on the 2nd Count making an effective sentence of 18 months imprisonment.

He has appealed against the sentence as being harsh and excessive urging his youth, co-operation with the police and recovery of the stolen items in support of his appeal.

The appellant was born on the 2nd of February 1969 and would have been 19 years at the time of committing the offences. He has served half his sentence already and he asks to be allowed to return to his village in Kadavu.

The learned trial magistrate in sentencing the appellant took into account his guilty plea "........ as (being) the only factor in (his) favour". With respect I cannot agree.

If the learned trial magistrate had considered the outline of facts submitted by the police prosecutor and the dates of the offences he would not have failed to notice that the offences are alleged to have been committed between January and March 1987 (some 2 years before they were dealt with!)

But more importantly the learned trial magistrate would have realised that this offence only "came-to-light" so to speak, through the quite "unusual" honesty of the appellant in admitting the offences to the police when he was questioned by them under suspicion.

Needless to say the appellant could have just as easily denied the items in his possession were stolen and the police would not have been any the wiser. Instead he confessed.

The fact that the appellant himself pointed out the victim's house to the police is also a further feature of his cooperation with them.

These are all mitigating factors that show that there is still some "good" in the appellant and should have been taken into account by the learned trial magistrate. I say nothing of his youthfulness.

Accordingly I am able to show the appellant some leniency. His appeal against sentence is granted and his sentence is reduced so as to allow him to be released immediately. This will enable him to celebrate his 21st birthday tomorrow out of prison with his father before his departure for Kadavu.

(D.V. Fatiaki)
JUDGE

At Suva,
1st February, 1990

HAA0064J.89S