Vero v The State [1993] FJHC 86; Haa0015j.93b (1 October 1993)

IN THE HIGH COURT OF FIJI
At Labasa
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 15 OF 1993

Between:

1. JONE VERO
2. NAITEGE VULICI
Appellants

- and -

THE STATE
Respondent

Appellants in Person
Mr. Ian Wikramanayake for the State

JUDGMENT

This appeal by the appellants is against sentence only and is lodged on the ground mainly that it is harsh and excessive.

They were convicted on their own plea by the Resident Magistrate, Labasa on four counts in the charge and sentenced as follows:-

First Count: School breaking entering and larceny - 18 months' imprisonment

Second Count: Burglary and Larceny in Dwelling-house - 18 months' imprisonment

Third Count: Larceny - 18 months' imprisonment

Fourth Count: Larceny - 18 months' imprisonment

(All the sentences to be served concurrently)

The appellants are 21 years and 18 years of age respectively. They have previous convictions for larceny. While still bound over the second appellant committed the present offences. The first appellant's last conviction (on 4 counts) was in 1992. The appellants have committed serious offences and a deterrent sentence was warranted.

The learned State Counsel supports the sentence imposed on the appellants.

I am satisfied that the sentence of 18 months' imprisonment on each of the appellants to be served concurrently against which they have appealed is neither harsh and excessive nor wrong in principle.

Before I dispose of the appeal, I notice that count 2 in the charge has been badly framed and worded and is not in accordance with Form No. 9 in the Second Schedule to the Criminal Procedure Code. Before the word "Larceny" in the second line of count 2 the word "AND" should appear and in the Particulars of Offence the vital ingredients of the offence in question namely the words "in the night" and "with intent to steal therein" have been entirely omitted. Instead the appellants with another are charged as follows:-

"SECOND COUNT

Statement of Offence

BURGLARY: contrary to section 299(a) of the Penal Code, Cap. 17

LARCENY IN DWELLING HOUSE: contrary to section 270 of Penal Code, Cap. 17

Particulars of Offence

JONE VERO, NAITEGE VULICI AND SERU VERESI between the 7th day of May, 1993 and 8th day of May, 1993, at Tabia, Labasa in the Northern Division, broke into dwelling house of NAREND PRASAD f/n RAM PRASAD, and stole $180.00 the property of the said NAREND PRASAD f/n RAM PRASAD".

On the authority of Director of Public Prosecutions v. SOLOMONE TUI (21 FLR p.4) and EMORI FOTU v. REGINAM (23 FLR p.113), it is my view that the conviction cannot be supported and allowed to stand.

The conviction on count 2 is quashed and the sentence set aside.

Although I have quashed the conviction on count 2, I consider that it does not in any way affect the sentence passed on the appellants and therefore the sentence of 18 months on the other counts to be served concurrently is not disturbed.

The appellants' appeal against sentence is dismissed.

D. Pathik
Acting Puisne Judge

At Labasa
1st October, 1993

HAA0015J.93B