| Fiji Islands - Varani v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 33 OF 1998
BETWEEN:
LEPANI VARANI
Appellant
AND:
STATE
Respondent
Appellant in Person
Ms. Anuja Sukhdeo for the State
JUDGMENT
The appellant was convicted of the offence of house breaking entering and larceny contrary to section 300(a) of the Penal Code Cap. 17 and was sentenced to 12 months' imprisonment at the Magistrate's Court, Labasa.
He now appeals against severity of sentence.
The appellant said that he has a Form 7 education and is at present attending the Fiji Institute of Technology doing a second year
course in mechanical engineering. He came home when this offence took place; he resumes his studies on 3 August 1998. He is 20 years
old and comes from Taveuni. He said in mitigation that he "stole from the doctor. I am sorry. I stole because I wanted to go
fishing."
Opposing the appeal the learned State Counsel stated that this is a prevalent offence and there is need for a deterrent sentence.
In this case he is a young offender and bulk of the items have been recovered.
I have given due consideration to this appeal. Although because he is a student he does not come under a special category from others
in regard to meting out of sentences, nevertheless one has to consider the facts surrounding this case and the fact that the appellant
is a young offender.
It is accepted that the criminal law exists to protect the community and this is achieved primarily by deterrence but is also contributed
to by the successful rehabilitation of offenders which assumes particular importance in the case of first offenders (CASEY v HAYWOOD 137 FLR - Sup. Ct. of N.T. - KEARNEY J - March 1997).
There is no sentencing "tariff" for this kind of offence for the sentence in each case has to be determined on the basis
of the facts of the particular case. In sentencing the following observations of BRAY C.J. in BIRCH v FITZGERALD (1975) 11 SASR 114 at 116-117 is in point particularly where in the case of first offenders and others who have not developed settled criminal habits:
"If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that
extent impaired. If the sentence involves or assists an offender to avoid offending in future, the protection of the community is
to that extent enhanced."
And as stated by KEARNEY J. in Casey supra at p.417:
"To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the
sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions
and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure
by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations.
They are summed-up, in the aspects relevant to the present discussion, by Napier CJ, in Webb v O'Sullivan [1952] SASR 65 at 66:
'The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender as nearly as may be. Our
first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the
maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.'
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another
human being to avoid making ruin of his life, we ought surely to do so."
The appeal is allowed by varying the sentence; the sentence is set aside and in lieu thereof in light of the character, antecedents
and age of the appellant I order that he be sentenced to imprisonment for 9 months suspended for 18 months. The appellant is explained
his liability in regard to the consequences of committing an offence in the future within the operational period of the suspended
sentence.
D. Pathik
JUDGE
