Nabukalevu v The State [1990] FJHC 25; Haa0061j.89s (16 February 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 61 OF 1989

Between:

SANAILA NABUKALEVU
EMORI NAISAKE
Appellants

v.

STATE
Respondent

Appellant in Person
Mr. S. Seneratne for the Respondent

JUDGMENT

The appellants were convicted by the Suva Magistrate Court on the 27th of June 1989 for an offence of House Breaking, Entering and Larceny and each sentenced to 18 months imprisonment.

The brief facts outlined by the prosecutor was as follows:

"Between 6-8 May 1989 complainant locked his house and went to Rewa leaving house in care of his brother. On 8.5.89 at 10.00 a.m. his brother informed complainant his house was broken into. Entry by removing louvre blades. Items as in charge missing."

The items that were stolen was a radio cassette and a wall clock with a total value of $135.00. One of the items has been recovered and has been returned to the complainant.

The appellants appeal against the sentence urging their youth in support and blaming their association with bad company as the cause of their offending.

It must be said at once that "following others" is not an excuse for committing crimes nor is 'peer-group' pressure a mitigating factor albeit that it is often greatest in the case of young people.

The first appellant was born on the 15th of January 1971 and is barely 19 years of age. He is a first offender and has already served almost 8 months of his sentence. The appellant's elder brother appeared at the hearing of the appeal and was permitted to speak in support of his appeal. He undertook to care for the appellant if he was released from prison.

This court will not let that plea go unanswered. The sentence of the first appellant is accordingly reduced so as to permit his immediate release upon his entering into a 12 month good behaviour bond in the sum of $100 with his elder brother Ravuama Matanagaga as surety in a like sum.

The second appellant is also a young offender but unlike the first appellant he is not a first offender. Indeed he has 3 previous convictions of which 2 are for offences similar to the present offence under appeal.

It is noteworthy that for these 2 prior convictions the 2nd appellant was sentenced to a total of 4 months imprisonment in November 1986. To his credit he has succeeded in staying out of trouble for 3 years since his last conviction and as State Counsel correctly points out it might be that the trial magistrate could have imposed a suspended prison sentence for this most recent conviction. He did not and cannot be faulted.

The 2nd appellant promises not to reoffend if he is released and asks to be allowed to return to his farm and parents.

I am aware that this is the 2nd appellant's second occasion in prison and am willing to give him another chance in the hope that he will reform himself and stay out of trouble. He too has already served 8 months in prison which is twice the length of his previous sentence.

Accordingly I order the second appellant's release upon he and his father (as surety) entering into a 2 year good behaviour bond in the sum of $100.

(D.V. Fatiaki)
JUDGE

At Suva,
16th February, 1990.

HAA0061J.89S