Latabua v The State [1991] FJHC 20; Haa0106.1990s (22 February 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 106 OF 1990

Between:

RAFAELE LATABUA
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Hettige for the Respondent

JUDGMENT

The appellant pleaded guilty to an offence of Fraudulent Conversion in the Magistrate Court, Nausori and was sentenced to 2 years imprisonment on the 4th of July, 1990.

He was originally charged on the 14th of October, 1988 and the case was adjourned thereafter on numerous occasions for various reasons including the absence of the appellant (for which no less than 4 bench warrants were issued) and on 3 occasions ostensibly to enable the appellant to repay the sum allegedly converted by him.

The appellant now appeals against the sentence on the ground that it is harsh and excessive.

The facts of the case are fairly brief. It appears that the appellant was a member of a construction company which had undertaken to construct a church for Malabe Village and the $3,000 which he fraudulently converted to his own use and benefit was the first instalment he had personally received and receipted.

The learned trial magistrate in sentencing the appellant considered the facts of the case, his record of previous convictions and his unfulfilled promises to repay the money.

At the hearing of the appeal the appellant urged the Court to reduce his sentence or suspend the unserved portion of it. He also seeks time to repay the monies.

If I may say so neither of these courses commends itself to this Court. As was correctly observed by the learned trial magistrate this is not the appellant's first conviction for Fraudulent Conversion or dishonesty nor would it be the first occasion for him to receive a suspended prison sentence should his present sentence be suspended.

Indeed the appellant's record reveals that he was charged for this present offence only 4 months after he received a suspended sentence for an identical offence committed prior to the present offence.

Then the appellant raises the plight of his family. Whilst the Court can sympathise with the appellant's family who are innocent victims of the appellant's dishonesty that is an unavoidable (albeit undesirable) consequence for any family that loses its sole breadwinner.

As for repaying the sum converted, more than enough time has been given the appellant within which he could have made a start if he truly wanted. The fact that nothing has been repaid speaks volumes louder than all the appellant's hollow promises to pay.

The sentence is neither harsh nor excessive and the appellant's appeal against it is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
22nd February, 1991.

HAA0106.90S