Osborne v The State [1993] FJHC 81; Haa0567j.93b (24 September 1993)

IN THE HIGH COURT OF FIJI
At Labasa
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 5, 6 AND 7 OF 1993

Between:

EPARAMA BALE OSBORNE
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Mr. Ian Wikramanayake for the State

JUDGMENT

On the 11th January, 1993 the Appellant was along with another convicted on his own plea by the Taveuni Magistrate's Court as follows:-

(a) Taveuni Criminal Case No. 17/93: 2 years' imprisonment for shop breaking entering and larceny.

(b) Taveuni Criminal Case No. 13/93: 2 years' imprisonment for Cafeteria Breaking Entering and Larceny; sentence to run concurrently with sentence in Criminal Case No. 17/93.

(c) Taveuni Criminal Case No. 12/93: 2 years' imprisonment for Office-Breaking Entering and Larceny: sentence to run consecutively with sentence in Case No. 17/93.

The total sentence passed on the Appellant was 4 years' imprisonment.

The appellant has appealed on a number of grounds the only one which I consider it necessary to deal with being that the sentences are harsh and excessive. The appeals relate to the said Taveuni Criminal Case Nos. 17/93, 13/93 and 12/93 and I shall deal with them together on this file.

The Learned State Counsel expressed the view that the sentence is on the high side and needs to be reduced and made concurrent. He said that the appellant's last conviction was in 1986 and he could be placed in the category of a first offender.

The co-accused was given a similar sentence as the appellant. Although the appellant had lodged his petition of appeal, for some reason he was not brought from Prison for his appeal to be heard the same time as the co-accused when his Lordship the Chief Justice dealt with it on 21st June, 1993. There the sentence in each case was reduced to one year to be served concurrently.

Had appellant been heard on 21st June, his sentence would also have been reduced as above. I agree with his Lordship the Chief Justice in setting aside the sentence.

The abovementioned offences were committed between the same period namely 2.1.93 and 3.1.93. The total effective sentence passed on appellant is 4 years.

This sentence is clearly wrong in principle as well as being harsh and excessive.

The series of offences were committed within a matter of a few days and could have been charged on the one complaint. It could be regarded as one transaction.

There was no justification for the sentence in Criminal Case No. 12/93 to run consecutively.

The sentences are accordingly set aside and the following sentences are substituted:-

Taveuni Criminal Case No. 17/93 - 1 year

Taveuni Criminal Case No. 13/93 - 1 year

Taveuni Criminal Case No. 12/93 - 1 year

The sentences are to be served concurrently giving a total effective sentence of one (1) year.

The appeal is to this extent allowed.

D. Pathik
Acting Puisne Judge

At Labasa
24th September, 1993

HAA0567J.93B