Naso v The State [1998] FJHC 101; Haa0035j.98b (20 July 1998)

Fiji Islands - Naso v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 35 OF 1998

BETWEEN:

:

MOSESE NASO
Appellant

AND:

STATE
Respondent

Appelln person
Ms. Anuja Sukhdeo for the State

IGN=CENTER>JUDG>JUDGMENT

The appellant MOSESE NASO (with 3 others) was on 3 February 1998 on his own plea convicted of the offence of shop breaking entering and larceny contrary to sn 300(a) of the Penal Code Code Cap. 17 by the Magistrate's Court at Labasa and was on 6 February 1998 sentenced to imprisonment for 2 years. The sentence passed on the three others was 12 months' imprisonment.

The appeal is against severity of sentence.

The appellant who is 18 years old submits that because the three co-accused received a lesser sentence there should be a reduction in his sentence.

It is the State's submission that the sentence is right in principle and it is neither harsh nor excessive.

Ms. Sukhdeo stated that the appellant has previous convictions whereas the others have none.

In considering this appeal I have taken into account all that the learned Magistrate has said regarding the prevalence of the offence and the relevance to send young offenders to prison. They are all 20 year olds and very little of the property stolen has been recovered. The learned Magistrate was persuaded by the appellant's previous convictions in doubling the sentence imposed by him on the others.

The disparity in the sentence is substantial even with the previous convictions. There is no doubt that the intention to commit the offence was well-planned. The appellant must expect a deterrent sentence and hence the sentence passed was entirely appropriate except that it was on the high side.

There are two principles which emerge from the cases on disparity. The first is well illustrated from the well-known passage from the judgment of LAWTON L.J. in FAWCETT (1983) 5 Cr. App. R. (S.) 158. The headnote reads:

"In the present case, the sentences imposed on the three appellants were right in principle, and the sentences imposed on H were inadequate. The approach of the Court was to ask whether right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, would consider that something had gone wrong with the administration of justice."

The second principle can be put this way (as stated by JUDGE COLSTON Q.C. in VINCENT RUGG 1997 2 Cr. App. R. (S.) C.A. 350 at 352):

"where an appellant has received a sentence which is not excessive for his offence but a co-defendant whose culpability is not significantly different has received a less severe sentence which is unduly lenient, the Court of Appeal may reduce the appellant's sentence if the disparity is so substantial that the appellant has a justified sense of grievance."

In passing sentence on the appellant the Magistrate was justified in distinguishing between the appellant and the others as he did, but it is this Court's view that this has left the appellant with a sense of grievance at the extraordinary light sentence passed which complaint I consider was justified.

I therefore find that the sentence which the appellant received was excessive and wrong in principle. It is a proper case in which to reduce the sentence to some extent. I substitute a sentence of eighteen months for the sentence of two years imposed by the Magistrate. To that extent the appeal succeeds.

D. Pathik
Judge

At Labasa
20 July 1998

Haa0035j.98b