Waitawa v The State [1998] FJHC 9; Haa0055d.97b (26 January 1998)

Fiji Islands - Waitawa v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0055 OF 1997

Between:

MALAKAI WAITAWA
Appellant

and:

THE STATE
Respondent

Appellant in Person
Ms. A. Driu for the Respondent

REASONS FOR DECISION

On the 25th of November 1997 this Court allowed the appellant's appeal against sentence for reasons which I now deliver.

On b>16th of Septembptember 1997 after numerous adjournments over 2 1/2 years, the appellant was convicted in the Nabu Magistrate Court after he pleaded 'guilty' to an offence of Office Bice Breaking Entering and Larceny. Upon his conviction the appellant was sentenced to 15 months imprisonment.

The prosecution's case was that the appellant had broken and entered the Radio Telephone Office at Bua and stolen a money box containing $400 cash.

The appellant appealed against his sentence and urged the Court to consider his 'guilty' plea; his relative youth (18 years) and the fact that he played a 'minor' role in the commission of the offence and gained nothing from it.

To her credit, State Counsel at the hearing of the appeal confirmed from the relevant police docket that the offence was committed by the appellant and two (2) other persons and the appellant was the 'watchman'. She also accepted that the trial magistrate in sentencing the appellant may not have considered his 'guilty' plea insofar as there is no record that he did.

It is axiomatic that in cases involving several offenders, each offender should only be sentenced for his role in the commission of the offence where it is known. In other words sentences of joint-offenders should wherever just and possible, reflect the varying degrees of responsibility of each offender in the actual commission of the offence.

Furthermore in sentencing a young offender for the first time to prison the Court should seek to impose the shortest possible sentence bearing in mind the salutary effect of a 'short, sharp, shock' on such an offender.

In this case the trial magistrate although he was unaware of the appellant's 'secondary role' in the commission of the offence, nevertheless sentenced the appellant on the basis that he had 'a previous conviction for stealing' in the absence of a certified record of previous convictions.

He did not mention the appellant's 'guilty' plea as a mitigating factor or even refer to his age nor did he seek a social welfare officer's report as he should have and in the result passed an unduly harsh sentence of imprisonment.

In those circumstances, the sentence could not be allowed to remain and it was accordingly varied by an order suspending for 18 months, the remaining term of 9 months imprisonment yet to be served by the appellant, with effect from the 25th November 1997, the date on which the appeal was heard.

The appellant was ordered to be released forthwith and warned that if he re-offended and was convicted within the next 18 months he would be liable to have his 9 months suspended sentence activated in addition to any other sentence that might be imposed for his re-offending.

D.V. Fatiaki
JUDGE

At Labasa,
26th January, 1998.

Haa0055d.97b