Sami v The State [1998] FJHC 24; HAA0001j.1998b (27 February 1998)

Fiji Islands - Sushil Sami (s/o Rutan Sami) v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

Criminal Appeal No. 1 of 1998
(Labasa Magistrates Court Case No. 140/96)

:

SUSHIL SAMI
(s/o Rutan Sami)
Appellant

AND:

THE STATE
Respondent

Appellant in Pers> Pbr> P. Petaia for the Respondent

JUDGMENT

The Appellant pleaded guilty to one count of larceny from the person when he appeaefore the Labasa Magistrates Court (A. Kuver Esq.) on 24 No24 November 1997. It will be noted that he had first been charged on 12 February 1996 when he had pleaded not guilty to stealing $186 in cash from Raghu Nandan on 19 January 1996. After 6 adjournments the Appellant changed his plea.

The brief facts were that the Appellant was seen picking Raghu Nandan’s pocket at the bus stand. He was promptly arrested and charged. The money stolen was recovered.

In mitigation the Appellant told the Court that he was 32 years old and that he was married with 3 children. He admitted 4 previous convictions involving larceny, the most recent sentence. The Resident Magistrate imposed a sentence of 9 months imprisonment consecutive to the sentence that he was already serving. The Appellant now appeals against that sentence which was imposed after the Resident Magistrate had taken into account his plea of guilty and had specifically ignored the three older convictions.

In support of his appeal the Appellant suggests that the sentence imposed was harsh and excessive. He is the sole breadwinner in a poor family. His oldest child is in class 5 while his second child is in class 1. He says he had been drinking at the time he committed this offence. He promises not to re-offend and asks for mercy.

The maximum penalty for this offence is 14 years imprisonment. The High Court has repeatedly stressed that the function of an appellate Court is not to sentence afresh, substituting its own discretion for that exercised by the lower Court, but to act where sentences imposed by the lower Court are wrong in principle. It would have been sensible and appropriate for this Appellant to have had this offence dealt with at the same time as the sentence imposed on in September 1997, an offence apparently committed after present offence. It is possible that had that course been taken the overall sentence imposed might have been less. As things turned out however the Appellant did not take this course. I have to take events as I find them, not as they might have been. Although the overall sentence is arguably on the high side pick-pocketing is a nasty offence and I doubt whether the victim and his family could afford to lose such a comparatively large sum of money. The Appellant, judging by his past behaviour seems to be taking some time to realise that it is high time he gave up behaving in this manner. I am not satisfied that the sentence imposed by the Resident Magistrate was in any way wrong in principle. In these circumstances the appeal must fail and is dismissed.

M.D. Scott
JUDGE

27 February 1998.

Haa0001j.98b