Raboila v The State [1999] FJHC 9; Haa0049j.98b (25 February 1999)

Fiji Islands - Raboila v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0049 OF 1998

BETWEEN:

GABIRIELI RABOILA
Appellant

AND:

THE STATE
Respo

Appellant in Pers> Mbr> Ms. A. Driu for the Respondent

JUDGMENT

The appellant was convicted by the Taveuni Magistrate Court after he pleaded guilty to an offence of Burglary. Upon his conviction the appellant was sentenced to 18 months imprisonment.

The appellant now appeals against his conviction on the ground that his guilty plea was the direct result of police 'harassment' and 'assault' and not freely given and, against his sentence which he claims is unduly harsh.

As to the appellant's conviction it is noteworthy that in his police interview the appellant is said to have admitted the offence and what's more two (2) of the stolen items were subsequently recovered from him.

The appellant at the hearing of the appeal maintains, however, that he was assaulted and threatened by the police but no such complaint was ever made to the trial magistrate as might be expected of someone who has had prior experience of court procedures, nor is it suggested that he sustained any visible injuries as a result of the alleged assault.

Having carefully considered the aforementioned matters I am satisfied that the appellant's guilty plea was an unequivocal one given freely and with full knowledge of the nature of the offence with which he was charged.

The appeal against conviction is dismissed as unmeritorious and incompetent.

As for the sentence of 18 months, State Counsel in opposing the appeal laid stress on the fact that the greater portion of stolen property enumerated in the charge had not been recovered.

The trial magistrate in his sentencing remarks said:

'...This is a particularly bad case of stealing and apart from his plea of guilty there are hardly any mitigating factors of much substance.'

I confess to some difficulty in understanding how? or in what way? was the present case '...a particularly bad case of stealing.' Indeed, if anything it appears to follow an all too-familiar pattern of a vacant home being broken into and items being stolen therefrom.

There is no suggestion that the house was occupied at the time or of threats being used or of wanton destruction being caused in gaining entry, nor is there any suggestion of any relationship of trust existing between the complainant and the appellant such as might exist between an absentee home-owner and a hired minder.

Furthermore, no consideration seems to have been given to the appellant's relative youth and the fact that this was his first sentence of imprisonment.

Given the above I am satisfied that the appellant was sentenced on an inappropriate basis and some leniency may be shown to him.

The sentence is accordingly reduced to one of 12 months imprisonment with effect from the 26th August 1998.

The appellant has served by now almost seven (7) months imprisonment which is the effective term he should serve on his reduced sentence with remission, and accordingly I order his immediate release.

D.V. FATIAKI
JUDGE

At Labasa
25th February, 1999.

Haa0049j.98b