Kumar v The State [1996] FJHC 52; Haa0027j.96b (16 September 1996)

Fiji Islands - Salendra Kumar v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0027 OF 1996

Between:

SALENDRA KUMAR
s/o Bal Bal Ram
Appellant

AND:

THE STATE
>
Respondent

Mr. A. Kohli for Appellant
Ms. L. Laveti for Respondent

JUDGMENT

On the 21st of May 1996 the appellant onvicted in the Labasa Magistrate Court after he plee pleaded 'guilty' to an offence of Larceny from a Dwelling House and was sentenced to 2 years imprisonment.

He now appeals against his sentence on the ground that it i'harsh and excessive' and his counsel urges vari various personal and mitigatory factors which he claims the trial magistrate failed to take into account in sentencing the appellant. The brief facts of the case are that the appellant had stayed with his friend the complainant for a few days and shortly after he left the complainant's wife discovered her jewellery was missing. A police report was lodged and the appellant was located and, when interviewed, he admitted stealing the jewellery. He later assisted the police in recovering two (2) gold chains and a gold pendant worth a total of $1450, from the persons to whom he had sold the items.

The trial magistrate in sentencing the appellant referred to his record of 5 previous convictions aid (at p.7 of thef the record):

"He has not learnt from his mistakes. He has enjoyed theitality of the complainant nant and stole her jewellery worth $2150. Accused is sentenced to 2 years imprisonment."

Counsr the appellant submits however that the trial magistrate misconstrued the appellant's reco record of previous convictions in that, on proper analysis, it demonstrates quite the converse of what the trial magistrate said.

In particular counsel submits the appell record of previous convictions indicates that the earlier lier offences of dishonesty were committed between 1987 and 1991 when the appellant would have been between 16 and 19 years of age, and that since then he has largely kept out of trouble except for a minor unrelated case of Assault Occasioning Actual Bodily Harm in 1994 for which he was bound over.

In other words contrary to what the trial magistrate said, the appellant has indeed learnt his lesson and should be supported and encouraged to continue to reform himself. In this I am in agreement with counsel's submission.

Furthermore counsel submiat in the absence of any clear record the trial magistrate failed to take into account the the appellant's plea of 'guilty' and the assistance he rendered to the police in the recovery of the stolen jewellery, both of which are mitigating factors that ought to have weighed in the appellant's favour.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In this case the appellant is 24 years of age, recently married andcting his first child. One One can only hope that with this added responsibility he will finally settle down and lead an honest life.

I have no doubt that had the trial magistrate properly and correctly considered the above factors the sentence he imposed would have been significantly less and in failing to do so he fell into error.

The appeal is allowed and the sentence is quashed and in subtion therefor I impose a sentence of 12 months impriimprisonment.

D.V. Fatiaki
JUDGE

At Labasa,
16th September, 1996.

Haa0027j.96b