Tabana v The State [1990] FJHC 21; Haa0116j.89s (16 February 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NOS. 116 & 117 OF 1989

Between:

SOLOVENI TABANA
Appellant

v.

STATE
Respondent

Appellant in Person
Ms. A. Prasad for the Respondent

JUDGMENT

On the 5th of September 1989 the appellant was convicted and sentenced by the Suva Magistrate Court in the following Criminal Cases:

Criminal Case No. 1815/89

Workshop Breaking, Entering and Larceny sentenced to 12 months imprisonment.

Criminal Case No. 1816/89

3 Counts of Office Breaking, Entering and Larceny sentenced to 2 years imprisonment on each count to be served concurrently but consecutive to the sentence of 12 months imprisonment imposed in Criminal Case No. 1815/89 making a total sentence of 3 years imprisonment.

The appellant says the sentence is harsh and excessive having regard to his youth and he seeks the court's mercy and clemency.

The appellant it is true is a young man. He only very recently turned 20 but his record of previous convictions dates back to 1985 (when he would have been only 15 years of age) and is mainly for offences of dishonesty.

In two previous instances they were for offences similar to those in the present cases under appeal.

At the hearing of this appeal the appellant denied stealing the measuring tape he is alleged to have stolen from 1 of the 3 offices he was charged with breaking into in Criminal Case No. 1816/89. He says that he had merely broken into them in search of a place to sleep. He also asserted that another so-called office premises was in fact a "tent" housing motor vehicles.

It is noteworthy that the appellant was literally "found" in 1 of the office premises by patrolling security officers and handed over to the police yet no item appears to have been seized from him although one might have expected any stolen property to have been recovered if he had been searched as is the usual police practice after a person is charged with an offence.

Furthermore what the police prosecutor meant when he said in outlining the facts to the learned trial magistrate that the accused was "found inside" the office is not at all clear. In my view the expression is quite capable of supporting the appellant's version that he broke in only to sleep and if true, then his conviction cannot stand.

The appellant's police interview records were not produced to the learned trial magistrate for his perusal nor was State counsel able to assist this Court with any of its enquiries at the hearing of the appeal.

Indeed it appeared that all State counsel was armed with at the hearing of the appeal was a copy of the typed record of the Magistrate Court proceedings. She did not have the relevant police docket as was the usual practice of counsel responding for the Office of the Director of Public Prosecutions.

I am of course mindful that in the determination of appeals this Court is normally guided by the typed record of proceedings provided by the Magistrate Court.

Furthermore, I am aware that there is an existing practice requiring affidavit evidence whenever it is sought to amend or add to the typed Magistrate Court record, but these are only procedural matters that cannot be allowed to hamper or deter this Court from its duty to achieve justice by the ascertainment of the truth.

In this latter regard learned counsel for the State has a duty to assist the Court and it is difficult to see how counsel can render any valuable assistance in the absence of the relevant police docket.

This is particularly so in the case of unrepresented appellants who often raise serious doubts as to their convictions (often for the first time) in presenting their appeals against sentence.

I trust that this particular concern of the court will not have to be raised again and that appropriate steps will be taken to ensure that in future counsels appearing for the State are equipped with the relevant police docket(s) whenever they respond to appeals.

Having said that however I am grateful for the assistance of learned State Counsel in drawing my attention to this Court's decision in an earlier appeal of the appellant's in Criminal Appeal No. 88 of 1988 in which the Court reduced a sentence of 2 years for an offence of Office Breaking, Entering and Larceny to one of 9 months imprisonment.

On that occasion the Court said:

"........ because of his relative youth and this being his first occasion in prison of any considerable length, I am able to show him some leniency in the hope that the appellant will mend his ways after his release."

Unfortunately the appellant has not mended his ways for within months of his release from prison he committed no less than 4 breaking offences (2 being on the same day).

In the circumstances the appellant has forfeited any claim to this Court's leniency and although the nature and total value of the items stolen is relatively small being $80 cash and a measuring tape the sentences will remain unaltered.

The appeal is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
16th February, 1990.

HAA0116J.89S