Sami v The State [1998] FJHC 7; Haa0058j.97b (26 January 1998)

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

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0058 OF 1997

Between:

SUSHIL SAMI
s/o Yenkat Sami
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. A. Driu for the Respondent

JUDGMENT

On the 30th of September 1997 the appellant was convicted in the Labasa Magistrate Court for an offence of Larceny From Person. Upon his conviction the appellant was sentenced to 18 months imprisonment. It was his first time in prison.

The appellant had pleaded 'not guilty' to the charge and the prosecution called three (3) witnesses including the complainant (PW1); an 'eye-witness' (PW2); and the Investigating Officer (PW3) to prove the case. For his part, the appellant elected to give sworn testimony in his defence and called one witness.

The trial magistrate in convicting the appellant decided the case primarily on the basis of his own assessment of the credibility of the 'eye-witness' whose testimony he preferred to that of the appellant.

The appellant now appeals against his conviction because in his own words: 'I have not done the crime' and, against the sentence, which he says is both: 'harsh and excessive'.

The prosecution's case is that on the day in question the complainant whilst carrying a heavy carton with both hands and going through a narrow gap between two buses at the Labasa Bus Station, was approached from behind and pick-pocketed by the appellant. The incident was seen by an 'eye-witness' standing nearby who immediately asked the complainant if he had lost anything. Upon checking his pockets the complainant discovered $400 cash missing and a complaint was lodged at a nearby police-post.

The appellant in denying the theft claimed on oath that he had been drinking grog at a market stall all day long and had never left. He also claimed that sometime before the incident he had assaulted the 'eye-witness' thus giving him a 'motive' to falsely accuse the appellant presumably in revenge for the assault.

Unfortunately for the appellant, his own witness did not support his claim that he had never left the grog-drinking party at any time during the day. Indeed the witness testified that during the grog session at '3.50 p.m.', he had requested the appellant to buy him some cigarettes and the appellant had left and, soon after, he had seen the appellant being led away by the police.

Quite plainly from the evidence including his caution interview 'Ans 10', the appellant had the opportunity to commit the offence and although no money was recovered from him following his arrest soon after the incident, nevertheless, he was actually seen committing the offence.

The case clearly turned on what evidence the trial magistrate believed, the appellant's sworn denial or the 'eye-witnesses' testimony.

In such circumstances, an appellate court is at a distinct disadvantage in not having the benefit of seeing or hearing the witnesses and as was held in Chandrika Prasad Mishra v. Goberdhan 18 F.L.R. 116:

"Where a magistrate has based his findings upon his opinion of the veracity of the witnesses, convincing and compelling reasons must be shown before an appellate Court can feel justified in differing from the magistrate's findings."

In the present case after careful consideration of the trial magistrate's judgment and his assessment of the 'eye-witnesses' credibility, and mindful of the clear contradiction between the appellant's evidence and that of his own witness, I am neither compelled nor convinced that the trial magistrate's assessment was wrong or unjustified.

The appeal against the appellant's conviction must be, and is accordingly dismissed.

As for sentence, the trial magistrate recorded that the appellant had three (3) previous convictions, two (2) of which were for offences of Larceny from Person, and noted, that 'they are old', having been recorded in 1982 and 1983 (i.e. some 14 years previously when the appellant would have been a minor).

For all intents and purposes therefore the appellant ought to be treated as a first offender.

State Counsel in seeking to uphold the sentence highlighted the meanness and cunning of the appellant in taking advantage of the complainant's predicament at the time of the offence, and further, in the fact that the $400 cash was never recovered.

The appellant submitted however that he has a stable married life and a young family that depends on him entirely for their livelihood. He maintains his innocence and says that he is serving 'because of a witness who lied in Court'.

The appellant has undoubtedly kept out of trouble since his marriage 12 years ago and that is a factor in his favour. The trial magistrate however did not treat the appellant as a first offender as he should have, nor has he ignored his criminal record, otherwise, he would not have described the appellant as 'a pick-pocket'.

In so-doing the trial magistrate plainly ignored the 'gap principle' which the learned author of Thomas on 'Principles of Sentencing' (1973 edn.) describes (at p.179) as a 'substantial mitigating factor' which may '... influence the Court beyond mitigation of the sentence and lead to the use of an individualised measure'.

In all the circumstances and with a view to assisting the appellant to return to his family and retrace his steps back to the path of honesty I propose to adopt in this instance, an 'individualised measure'.

The appeal against sentence is allowed. The sentence is set aside and in substitution therefor I impose a sentence of 9 months imprisonment suspended for 18 months from today.

The appellant is warned that if he should re-offend within the next 18 months he may be required, in addition to any sentence passed for his re-offending, to serve the whole or a portion of the 9 months suspended sentence imposed today. Needless to say, should he re-offend there is little likelihood that the Court will be as lenient with him as it has been in this instance.

D.V. Fatiaki
JUDGE

At Labasa,
26th January, 1998.

Haa0058j.97b