IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0021 OF 1995

Between:

APAKUKI SALABOGI
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT

On the 13th of March 1995 the appellant was convicted on his plea of 'guilty' to an offence of Burglary and Larceny from a Dwelling House and was sentenced to 12 months imprisonment.

The prosecution's case which was admitted by the appellant was to the effect that the appellant broke and entered a neighbour's house in the absence of its occupants and removed a double bed and mattress and eating utensils to the total value of $395.00.

Investigations subsequently led to the appellant and all the stolen items were recovered and have been returned to its lawful owner.

In this regard I would only observe that bearing in mind the nature of the stolen items, although nothing was said in that regard, it is very unlikely that the appellant would have been able to commit the offence single-handedly.

Be that as it may the appellant now appeals against the harshness of the sentence imposed and urges in his Petition of Appeal, his guilty plea; the recovery of the stolen items; and the effect that his absence is having on his young family. He professes to have learnt a salutary lesson from the few months that he has served in prison and promises that he will not re-offend.

The appellant is a youngish man and although this is his third conviction it is his first custodial sentence. Nevertheless it was a sentence that was well merited considering that the Court had previously bound over the appellant to be of good behaviour and this offence was committed during the pendency of the binding over. He has plainly learnt little from the Court's early leniency.

Furthermore the circumstances of the offence reflects a degree of "meanness" on the part of the appellant who took advantage of the absence of his neighbour to burgle her house when he should have been watching over and protecting it, as might be expected of a "good neighbour".

Having said that however the learned trial magistrate no-where records that he has taken into account the appellant's guilty plea or the recovery of the stolen goods both of which are undoubtedly mitigating circumstances.

State Counsel in seeking to support the sentence submits however that both factors were a matter of record and the learned trial magistrate would have been aware of them in sentencing the appellant. I cannot agree that this Court is entitled to make such an assumption in the absence of any record to that effect.

I am also conscious that where an immediate custodial sentence is warranted the sentencing Court must be careful to ensure that the sentence imposed is as short as possible, consistent with the Court's duty to protect the public interest and to punish and deter the offender.

In this regard the appellant who had never been to prison would have been adequately dealt with equally justly and effectively by a short sentence as by a long one. The proven effectiveness of administering a 'short, sharp, shock' to such an offender cannot be ignored.

In the circumstances without in anyway criticising the nature of the sentence imposed, I consider that it is longer than necessary. The appellant who has already served 4 months in prison (being the equivalent of a 6 months sentence of imprisonment with remission) is accordingly ordered to be immediately released with the remaining unexpired portion of his sentence namely, 6 months imprisonment, suspended for a period of 12 months with effect from today.

The practical effect of this order is that the appellant shall be released from prison on a suspended sentence. He is further warned that if he is convicted of an imprisonable offence within the next 12 months, he will be brought back before this Court and may be required to serve the unexpired portion of his present sentence together with any other sentence that may be imposed for his re-offending.

Needless to say in the event the appellant does re-offend within the next 12 months, this Court is unlikely to extend to him the leniency it has been able to show him on this appeal.

(D.V. Fatiaki)
JUDGE

At Labasa,
17th July, 1995.
HAA0021J.95B