Sahid v The State [1997] FJHC 154; Haa0046j.97b (14 October 1997)

Fiji Islands - Sahid v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0046 OF 1997

Between:

MOHAMMED SAHID
s/o Edward Salim Khan
Appellant

and:

THE STATE
Respondent

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

JUDGMENT

On the 24th of July 1997 the appellant appeared in the Labasa Magistrates Court charged with another for the following offence:

"Statement of Offence

BURGLARY: Contrary to Section 299(a) of the Penal Code, Cap. 17.

Particulars of Offence

TON DRAMALLAY REDDY s/o Anamallay Reddy and Mohammed Sahid s/o Edward Salim Khan, on the 23rd day of July, 1997 at Labasa in the Northern Division by night broke and entered into the dwelling house of SUSHIL KUMAR s/o Bans Ram Sewak with intent to commit a felony therein namely Larceny."

The appellant pleaded 'Guilty' and admitted the summary of facts outlined by the prosecutor which, in brief, was to the effect that on the day in question the appellant and his co-accused after consuming six (6) bottles of beer had broken into the victim's house 'which was vacant'. Neighbours noticed them inside the house and informed the police, who arrived and arrested them 'inside the house'.

Upon his conviction the appellant was sentenced to six (6) months imprisonment. The trial magistrate also activated nine (9) months of a suspended prison sentence thus making a total sentence of (6 + 9) = 15 months imprisonment.

The appellant now appeals against his conviction and sentence on the following main 'grounds':

"1. THAT the learned Trial magistrate erred in law and in fact in convicting the accused when in fact the facts outlined did not disclose the offence with which the Petitioner was charged.

2. THAT the learned trial magistrate erred in law and in fact in taking irrelevant matters in consideration whilst sentencing the accused."

As to the first 'ground', counsel for the appellant submitted that the facts outlined did not support the charge insofar as they did not support or disclose any intention on the part of the appellant to commit larceny as alleged, and counsel highlighted the fact that the house was 'vacant' at the time meaning that it was completely empty presumably, of anything to steal. The submission is not dissimilar to an argument based on impossibility of performance.

It is clear however from the wording of Section 299(a) of the Penal Code that to constitute the offence of Burglary, it is sufficient to prove the breaking and entering of a dwelling house with intent to commit a felony therein without averring or proving the actual commission of any felony therein. It is therefore sufficient to merely aver in the charge, an intent to commit a specified felony.

As was said by Grant C.J. in D.P.P. v. Solomone Tui 21 F.L.R. 4 at p.7:

"The crime of burglary like all crimes other than those of strict liability requires the two elements of actus reus and mens rea. The actus reus is breaking and entering a dwelling house at night; but so far as the mens rea is concerned, it is necessary to go further and to prove what is described ... as an 'ulterior intent', which is that the accused had the intention of committing a felony in the dwelling house. Once this is proved the crime is complete, and the actual commission of that felony forms no part of the offence of burglary. Its actual commission may afford strong evidence, indeed the best evidence, that the accused entered with the requisite intent, ...

It is clear that breaking and entering with intent to steal is a quite different and distinct offence from breaking and entering and stealing [R. v. Nicholls (1960) 44 Cr. App. R. 188]."

I am satisfied that the charge in this case was not defective in form and the fact that the house was 'vacant' at the time, does not necessarily preclude the appellant from having the necessary intention to steal whatever he could find to steal therein. Needless to say there is not the slightest suggestion that at the relevant time, the appellant had any fore-knowledge that the house was 'vacant' in the sense suggested by his counsel.

In Emori Fotu v. R. Suva Cr. App. No. 54 of 1977 (unreported) Mishra J. (as he then was) said at p.4:

"In a case of burglary, or house-breaking with intent, where a specific felony is in fact committed, that is, of course, the best proof of the intent. Where, however, no felony is committed at all, the accused's own admission, or some other evidence of the intent to commit a specific felony becomes essential. If the particulars themselves clearly specify a felony, (as in the present charge) a plea of guilty to the charge puts the matter beyond doubt. Where, however, the particulars only mention 'a felony' then (assuming the charge itself is not defective) there must be something in the outline of facts to show what particular felonious intent the accused had. If he then agrees with the facts outlined, the conviction may, ..., be allowed to stand."

In this case the charge did specify a felony namely 'larceny' and to that charge the appellant is recorded to have pleaded 'guilty'. On the basis of the above dictum, which I respectfully accept, nothing more was required.

Needless to say State Counsel's concession at the hearing of the appeal does not alter the legal position.

The appeal against conviction is accordingly dismissed.

I turn next to consider the appeal against sentence and here counsel for the appellant submits that the trial magistrate failed to consider the relative youth of the appellant who was aged 17 years and the fact that this was his first time in prison; failed to take into account the appellant's plea of 'guilty' insofar as there is no record that he did; and also took into account an irrelevant matter in improperly assuming that there were 'valuables' in the 'vacant house' capable of being stolen. All of these matters are well taken.

As for the activation of the appellant's suspended sentence, counsel submits that the procedure adopted by the trial magistrate did not conform with that indicated in the judgment of Pain J. in Saimoni Tucila v. The State Suva Cr. App. No. 9 of 1996 where he said:

"... the offender must be given the opportunity to show cause why it would be unjust (to activate a suspended sentence in full). The practice approved by this Court, is for the offender to be given the opportunity to show cause on oath."

In this instance the Magistrate Court record contains the following relevant entries:

"Court: There is a suspended sentence pending against you. Do you admit it and have anything to say as to why it should not be activated?"

To which the appellant replied:

"I admit the suspended sentence. I pray that I be given another chance."

Quite plainly from the above entries, the appellant was "given the opportunity to show cause" by the trial magistrate (albeit NOT 'on oath').

Having considered the matter and mindful that there was no complaint on State Counsel's part to what occurred, I am satisfied that the procedure adopted by the trial magistrate, although not in strict compliance with the 'approved practice', was nevertheless, one which erred in the appellant's favour and therefore this ground of complaint has no merit and the activated sentence will remain unaltered.

The appeal against sentence is allowed however, on the basis of the 'matters' earlier discussed, in dealing with the present offence of Burglary which might for sentencing purposes, be described as nothing more than a minor case of Criminal Trespass by night, which carries a maximum sentence of 12 months imprisonment.

The sentence of 6 months imprisonment is set aside and in substitution therefor a sentence of one (1) month's imprisonment is imposed making a new total sentence of (1 + 9) = 10 months imprisonment with effect from the 24th of July 1997.

D.V. Fatiaki
JUDGE

At Labasa,
14th October, 1997.

Haa0046j.97b