Daruna v The State [1997] FJHC 61; Haa0017j.1997b (21 May 1997)

Fiji Islands - Daruna v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 17 OF 1997

BETWEEN:

1. PENAIA BALE DARUNA
2. ILISONI MEKEMEKE
Appellants

AND:

STATE
Respondent

The Appellants inon
Ms. L. Laveti for the State

JUDGMENT

On 5 March 1997 the appellants were convicted and sentenced in the Labasa Magistrate's Court by Magistrate Moses Fernando Esq., on their own plea of the offence of shop breaking entering and larceny contrary to section 300(a) of the Penal Code.

The particulars of offence was that between 25 February 1997 and 26 February 1997 the appellants with another broke and entered the Lakshmi Office Service Shop and stole from therein certain items and cash to the total value of $3741.00 the property of Latchmaiya Naidu s/o Nagaiya.

Upon their conviction each appellant was sentenced to 18 months' imprisonment. The suspended sentence imposed on First Appellant on 28 June 1996 was activated to be served consecutive to this sentence.

The appellants' appeal are against the severity of sentence.

The first appellant says that the sentence is "too much" compared to other serious cases. He says that bulk of the items have been recovered and that he is a first offender.

The second appellant says that all items have been recovered. He admitted that he has two previous convictions.

The learned State counsel submitted that only items worth $1889 have been recovered. She said that both have previous convictions and that custodial sentence is warranted. However, she submits that the sentence meted out is on the higher side bearing in mind the mitigating factors about which the Magistrate says nothing before sentencing. In these circumstances she feels that a reduction in sentence will not be inappropriate.

Bearing in mind the facts of this case, the appellant's guilty plea and the recovery of half the stolen items, consideration should have been given to these mitigating factors. Whether that was done or not cannot be gathered from the record for there it is merely stated that "breaking into shops and house are becoming more and more common in the area now. In my view both accused deserve custodial sentence. Each accused sentenced to 18 months imprisonment".

The said sentencing remarks, in the absence of any reference to the mitigating factors, give the impression that it was only the prevalence of the offence that was taken into account before the sentence was passed.

Although there is no legal requirement, and knowing how busy the Magistrates are, it would be a good practice to put in a relatively small compass that mitigating factors have been taken into account in sentencing, rather than leaving the accused to guess whether that was done or not. This procedure will assist the appellate Court as well if there is an appeal and it will also help the accused to decide whether to appeal or not. A lot of cases which come on appeal are based on the ground that the sentence is harsh and excessive and mitigating factors have not been taken into account.

The appellate Court will not intervene unless it is shown that there is some reason for concluding that the sentencing discretion was improperly exercised. (SULTAN v SVIKART [1989] NTSC 20; (1989) 96 FLR 457 at 458-459). For apparently disregarding the mitigating factors I would say that the Magistrate's sentencing discretion was wrongly exercised. It also appears likely that the magistrate placed some weight on the appellants' prior record vis a vis the mitigating factors. However, it is unnecessary to speculate as to how the sentence was determined for the fact that mitigating factors were not taken into account its excessive nature is manifest establishing error. This court is therefore free to interfere with the sentence. Ms. Laveti referred the Court to the case of SHARDA PRASAD s/o Mathura Prasad v STATE (Crim. App. No. 4/96) in which FATIAKI J said that although a custodial sentence was merited, "however, in the absence of any record by the learned trial Magistrate that he had taken into consideration the appellants' plea of `guilty', this court is able to mitigate the sentence by a small reduction".

In the outcome, on the facts and circumstances of this case and for the above reasons, the sentence is accordingly reduced to 15 months' imprisonment in the case of each appellant with effect from 5 March 1997. The first appellant's activation of suspended sentence is not disturbed. Subject to such reduction in the sentence the appeal is dismissed.

D. Pathik
Judge

At Labasa
21 May, 1997

Haa0017j.97b