Samate v The State [1997] FJHC 36; HAA0001j.1997b (17 March 1997)

Fiji Islands - Samate v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0001 OF 1997

BETWEEN:

TADEO SAMATE
Appellant

AND:

THE STATE
Respondent

Appellant in Perr> Ms. L. Tabuya and Mr. N. Bhindi for the State

JUDGMENT

On the 9th of December, 1996 the appellant and two others were convicted by the Taveuni Magistrate Court after they pleaded guilty to an offence of Larceny of Cattle. Upon his conviction the appellant was sentenced to 18 months imprisonment and his co-accused were each sentenced to 12 months imprisonment.

The appellant now appeals against his sentence on the ground of 'disparity'. He also complains that he was not given enough time to mitigate.

I can deal quite briefly with the ground of 'disparity'. There is undoubtedly a difference of 6 months between the appellant's sentence and that of his co-accused and although nothing is said as to their respective roles in the commission of the offence or of their shares in the proceeds of sale of the carcass, there is a very significant difference between the appellant's record of ten (10) previous convictions and that of his co-accuseds who were effectively first offenders.

On this latter basis alone State Counsel submits that the trial magistrate was perfectly entitled to differentiate between the appellant's sentence and that of his co-accused. I entirely agree with State Counsel's submission and would only add that any sense of grievance the appellant may feel at the difference in sentences is quite unjustified.

This ground of appeal is accordingly dismissed as being wholly without any merit at all.

As for the second ground of complaint the record of the trial magistrate reveals (at p.7) that the appellant in mitigation said: 'I have reconciled.' Quite clearly the appellant was given an opportunity to mitigate and he did avail himself of the opportunity. His complaint however is that he was not given enough time and this the Court sought to alleviate at the hearing of the appeal.

The appellant firstly explained to the Court that: '... the reason I slaughtered the cattle was due to the extensive damages it has been causing to my farm ...' and as evidence of such crop damage the appellant submitted an Agriculture Department report dated August 1996 of crop damage caused by cattle estimated at $230.00.

Whilst I can sympathise with the natural anger and frustration the appellant might have felt on discovering his damaged crop, I cannot accept that that is a sufficient excuse or reason for the appellant to 'take the law into his own hands'. The fact that subsequent to the theft (in May 1996) the appellant saw fit to complain to and obtain a crop damage report from the appropriate authorities suggests that he is aware of a lawful alternative remedy. This Court cannot and will not condone the commission of such criminal acts of revenge or retaliation.

The appellant is 30 years of age, married with 5 children of which 2 are of school age. He is a crop farmer and leads a substantially subsistence life-style. He claims that since his incarceration his innocent family has been left in a desperate state and his children have not been able to attend school and he seeks the court's leniency and asks to be allowed to return to and care for his young family. He has served approximately 3 months of his sentence and is not due to be released before December 1997.

The appellant also explained the nature and terms of the reconciliation that had been effected between himself and the Manager of the Cattle Estate, namely, it was agreed that he would pay compensation to the owners to the value of the stolen cattle i.e. $220 or the owners could take as a replacement the appellant's own cattle which was being kept amongst the owners herd.

Unfortunately on the trial date the manager was attending a meeting in Suva and could not attend the court proceedings to confirm the reconciliation. None of the above was made known to the trial magistrate.

It must be said however that Larceny of Cattle is not a reconcilable offence, and perhaps, that is the reason the trial magistrate did not bother to pursue the matter when raised by the appellant in mitigation.

State Counsel in seeking to support the sentence emphasised the importance of cattle in a rural community. I accept that the importance of 'working bullocks' in a farming community far exceeds its monetary value and larceny of such cattle should be visited by an immediate custodial sentence, but I am not equally convinced where the cattle forms a single head of a herd of cattle maintained on a cattle ranch or estate unless it was used for breeding purposes or had some exceptional value which is not suggested in this case.

Given the appellant's greater maturity and added responsibilities as a husband and father I am willing to show him some leniency by exercising the Court's power under Section 37(1) of the Penal Code.

The sentence is accordingly set aside and in lieu thereof I impose a fine of $250.00 in default 6 months imprisonment. The appellant is also ordered to enter into his own recognisance in the sum of $250.00 conditioned upon his appearing before the High Court on the 21st of April 1997 upon which date, subject to the fine having been paid, a sentence of 9 months imprisonment suspended for 12 months shall be imposed.

In the event the fine is paid the sum of $220.00 is hereby ordered pursuant to Section 161(1)(b) of the Penal Code to be paid out to the complainant by way of compensation.

D.V. Fatiaki
JUDGE

At Labasa,
17th March, 1997.

Haa0001j.97b