Seganavanua v The State [1995] FJHC 160; Haa0028j.95b (25 October 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0028 OF 1995

Between:

KOLOSA SEGANAVANUA
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Ms. R. Shafiq for the Respondent

JUDGMENT

On the 1st of May 1995 the appellant was convicted in the Labasa Magistrate Court after he pleaded guilty to an offence of Robbery with Violence and admitted the prosecutor's outline of facts which may be briefly summarised as follows : Late in the evening of the day of the incident the appellant had struck the complainant on the arm with a piece of timber causing him to release his brief case containing cheques and cash which the appellant then snatched and ran away with. The appellant was later arrested in Suva and escorted to Labasa where he was charged with the offence.

Upon his conviction and after the appellant had mitigated on his own behalf the case was adjourned for sentencing. The following day the learned trial magistrate in a carefully considered ruling imposed a sentence of 3 years imprisonment.

The appellant now appeals against the harshness of the sentence. He urges his relative youth in support of his appeal and seeks the Court's leniency and mercy. He professes to have learnt the evil of his former ways and asks for a chance to reform himself and complete his schooling. He promises not to re-offend and to return to live with his parents.

In this latter regard the appellant's father who appeared at the hearing of the appeal undertook to look after the appellant in the event that he was released by this Court.

In considering this appeal I say at once that a custodial sentence was wholly appropriate in all the circumstances and the learned trial magistrate's sentence cannot be faulted on that score.

It hardly needs repeating by this Court that persons who use gratuitous violence and rob innocent citizens of their property and possessions must expect as a norm to go to prison if they are caught and convicted.

Having said that however I am satisfied that where a Court is sentencing a young offender a Social Welfare report ought first to be obtained. Furthermore, where a young offender is being sent to prison for the first time the sentencing court must not ignore the proven effectiveness on such an offender of what has been described as : `the clanging of the prison gates', where a short, sharp sentence of imprisonment is likely to be just as effective, if not more so, than a long prison term.

In this case a sentence of 3 years imprisonment on a first time inmate of barely 17 years of age can be considered crushing severe. In the appellant's own words: "Three (3) years in prison will totally ruin me."

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 almost 6 months of his sentence (being the equivalent of a 9 months sentence of imprisonment with full remission) is accordingly ordered to be immediately released with the remaining unexpired portion of his sentence namely, 18 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 and, in terms of Section 29(4) of the Penal Code the appellant is 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,
25th October, 1995.

HAA0028J.95B