Stolz v State [1999] FJHC 92; Haa0050j.99b (23 August 1999)

Fiji Islands - Stolz v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0050 OF 1999

BN:

:

1. JAMES STOLZ
2. AMANIA VEISA
3. HARVEY STOLZ
Appellants

AND:

THE STATE
Respondent

Mr. H. Robinson for the Appellants Ms. A. Driu for the Respondent

JUDGMENT

The appellants are joint offenders charged with an offence of Office Breaking, Entering and Larceny. On the 21st of December 1998 they appeared under arrest before the Labasa Magistrate Court where they each elected a Magistrate Court trial and pleaded 'guilty' to the charge. Upon their conviction each was sentenced to four (4) years imprisonment. They now appeal against the sentence as being unduly 'harsh and excessive'.

The brief facts of the case were that the appellants had broken and entered the manager's office at the Kaibu Island Resort and had removed a safe containing assorted jewellery as well as a substantial amount of local and foreign currency notes. The matter was reported to the police and during the course of police investigations the three (3) appellants were located and interviewed and admitted responsibility for the offence. All the jewellery and a significant amount of the currency notes were subsequently recovered and ordered returned to the resort.

During the course of outlining the facts the police prosecutor stated that the 'safe and $F2000 only' had been recovered. He did tender a 'search list' which runs into five (5) pages and remains unverified against the amount stolen. He does appear however to have informed the Court that 'All jewellery (was) recovered.'

The trial magistrate in his very brief sentencing remarks said (at p.13 of the record):

'Very serious and prevalent offence. Such offences on the rise. Well planned offence. Deterrent sentence needed. Tourism affected.''

No reference has been made either to the appellant's ready admissions and 'guilty' pleas which are undoubtedly strong mitigating factors, or, to the role of the appellants in the recovery of the stolen jewellery and currency notes which, in the circumstances of the case, must be considered also a significant mitigating factor.

In this latter regard the Court of Criminal Appeal (U.K.) in R. v. Lowe (1978) 66 Cr. App. R. 122 held:

'It is in the public interest that persons who have become involved in ... stealing large amounts of money and property should be encouraged to give information to the police in order that others may be brought to justice (and the goods recovered) and when such information (and assistance) is given and can be acted upon successfully (as occurred in this case), substantial credit should be given upon pleas of guilty especially where there is no other evidence against the informer than his own confession. Unless credit is given in such cases there is no encouragement for others to come forward and give information of invaluable assistance to society.'

What's more it does not appear in the trial magistrate's remarks that any attempt has been made to verify from the very detailed and comprehensive 'search lists' the actual amounts and Fiji values of the foreign currency notes recovered.

Had this been attempted it might well have indicated that all stolen currencies had been recovered and, most certainly, the trial magistrate would have immediately realised that the prosecutor's outline of the total value of Fijian currency recovered (viz: '$F2,000 only') was demonstrably incorrect.

Be that as it may the offence was undoubtedly a serious one involving a large sum of money and valuables and occurring on a relatively isolated island resort with limited access to law enforcement agencies or facilities. Furthermore, in the case of at least the first appellant, there was an element of using 'insider information' as an employee of the resort. A deterrent custodial sentence was therefore wholly appropriate.

However, in view of the mitigating factors earlier mentioned in this judgment which appear to have been overlooked by the trial magistrate, and, in light of State Counsel's concession that the sentence appeared to be on the high side, the appeals are allowed and the sentence for each appellant is reduced to two (2) years imprisonment with effect from the 21st of December 1998.

D.V. Fatiaki
JUDGE

At Labasa,
23rd August, 1999.

Haa0050j.99b