Mani v The State [1997] FJHC 58; Haa0021j.1997b (21 May 1997)

Fiji Islands - Mani v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 21 OF

BETWEEN:

SHYAM DHIREN MANI
s/o Subarmani
Appellant

AND:

STATE
Respondent

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

JUDGMENT

On 7 April 1997 before the Labasa Magistrate's Court appellant was convicted by Magistrate Moses Fernando Esq., on his own plea of the offence of larceny contrary to section 259 and 262 of the Penal Code and was sentenced to 9 months' imprisonment.

The particulars of the offence were that between the 1 September 1996 and 30 January 1997 at Labasa in the Northern Division appellant "stole a bullock valued at $160.00 the property of one Muni Deo s/o Dhan Pal".

The appeal is against sentence on the grounds that it is harsh and excessive and that the Learned Magistrate failed to take into consideration relevant factors in mitigation.

The very brief facts as recorded are that the appellant "borrowed 2 bullocks from the complainant. He is complaint's cousin. He took them to his farm. He sold one of them. Matter reported. It is worth $300.00".

The appellant was not represented by counsel in the Magistrate's Court.

It is Mr. Kohli's submission that the learned Magistrate failed to take into account the mitigating factors for he makes no reference to them. The appellant pleaded guilty, is married with children, has reconciled with the complainant and the matter was settled when he replaced the bullock. He admitted that he had two previous convictions for larceny in 1991 for which he was fined. The complainant and the appellant are related. He said that the ends of justice would have been met by the imposition of a suspended sentence of imprisonment.

The learned counsel for the State said that she concedes the appeal as on the same day suspended sentence was meted out by the same Magistrate. She agreed with the "new" facts introduced by Mr. Kohli to the effect that the bullocks have been returned to the complainant although one of them is not the same. The docket reveals that this is so. She is in agreement with Mr. Kohli that the sentence imposed was not justified and a suspended sentence would have been more appropriate.

In his sentencing remarks all that the learned magistrate says is that the "accused has 2 previous convictions for larceny in 1991. He has stolen a bullock worth $300 for $160".

There is nothing in the record to indicate what factors he has taken into account before sentencing. It is doubtful whether he took into account the mitigating factors such as plea of guilty and the fact of reconciliation and the return of the bullocks. It appears likely from his sentencing remarks that the learned magistrate placed too much weight on the appellant's prior record and the value of the bullock as opposed to the circumstances of the theft as outlined above.

The learned magistrate's failure to give adequate reasons for imposing this sentence places a duty on the appellate court to scrutinize the decision with particular care. It is always advisable for magistrates, busy though they are, to give some indication in a relatively short compass the factors that they have taken into account when sentencing. This will not only assist the appellate court should there be an appeal against sentence but will also make the accused aware the path followed by the magistrate in arriving at the sentence.

In all the circumstances of this case, the learned State Counsel has very rightly conceded the appeal.

For the appellant to succeed he must establish that the learned magistrate's sentencing discretion was wrongly exercised. The precise question is whether in the circumstances of the case and of the appellant, he has shown that his sentence was "manifestly excessive" (KEARNEY J in BUTCHER v HAYMON [1991] NTSC 46; 104 FLR 354 at 355). I find that failure to take into account the said mitigating factors which is a definite and specific error is good enough reason to interfere with the sentence in this case.

I consider, bearing in mind the circumstances of the offence and the plea of guilty, that the appropriate sentence in this case was one of suspended sentence of imprisonment. The appellant's prior record which is about 6 years old is such that he is entitled to receive a discount.

For these reasons I allow the appeal and set aside the Order made by the Magistrate. I substitute a sentence of 9 months' imprisonment which is suspended for one year from the date of conviction. The accused is explained his liability. The appellant is therefore ordered to be released from prison forthwith.

D. Pathik
Judge

At Labasa
21 May 1997

Haa0021j.97b