IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 58 OF 1990

Between:

LUKE MATAI
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was convicted with 2 others after he pleaded guilty to an offence of Burglary and Larceny from Dwelling House. Upon his conviction the appellant was sentenced by the learned Chief Magistrate to 2 years imprisonment.

The brief facts of the case were that the appellant and his co-accused removed 4 louvre blades and entered the complainant's house whilst the occupants were asleep inside and stole a stereo and jewellery worth a total of $850.00. None of the stolen property has been recovered.

If I may say so this was a "bold" burglary on the part of the appellant and his co-accused made the more brazen by the fact that the occupants were asleep in the house at the time. One wonders what would have happened if the complainant had been roused from his sleep during the burglary? What ever the answer maybe it was a situation fraught with danger.

The appellant appeals against the harshness of the sentence on the ground that he was a "first offender" and other mitigating factors which he complains were not taken into account by the sentencing magistrate.

As to being a first offender learned State Counsel accepts that for the purposes of sentencing the appellant should have been treated as a first offender and with that I agree.

Similarly counsel very properly pointed out that both of the appellant's co-accused have several previous convictions which lends some support to the appellant's claim that he was misled by his co-accused into committing the offence.

Whilst I accept the principle that an accused's previous convictions can not be used to enhance his sentence the "converse" is also true, that is to say all things being equal an accused person's previous good record should tell in his favour so as to reduce what would otherwise be an appropriate sentence.

In this latter regard the appellant's complaint is justified. He has already served 7 months of his sentence and professes to have realised the "evil" of mixing in bad company.

I am willing to give the appellant the opportunity of reforming himself and in doing so I propose to "assist" him to keep within the law. Accordingly the remainder of the appellant's sentence (i.e. 9 months imprisonment with earned remission) is hereby ordered to be suspended for the next 12 months from the date hereof.

The immediate effect of this order is that the appellant shall be released from prison with the remainder of his sentence suspended for the next 12 months. 

The appellant is further warned that if he is convicted in the next 12 months for an imprisonable offence he may be required to serve the remainder of this sentence along with any other sentence that he may receive for his re-offending.

Needless to say if the appellant does re-offend the court is unlikely to be as lenient or merciful to him as it has been on this occasion.

(D.V. Fatiaki)
JUDGE

At Suva,
3rd August, 1990.
HAA0058J.90S