Tamaimasitabua v State [2001] FJHC 196; Criminal Appeal 16.2001 (24 May 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 16 OF 2001
(Labasa Mag. Ct. Crim. Case No. 113/2001)

Between:

NAIBUKA TAMAIMASITABUA
KELEMEDI SALAUNEUNE
Appellants

And

STATE
Respondent

Appellants in Person
Mr. J. Rabuku for the State

JUDGMENT

On 15 February 2001 the first appellant was on his own plea sentenced to imprisonment for three (3) years for the offences of house-breaking entering and larceny contrary to section 300 of the Penal Code and the second appellant for 18 months for receiving stolen property contrary to section 313(1)(a) of the Penal Code Cap.17.

The first appellant is a 31 year old fisherman with a wife and child. He says that the sentence is harsh and wants it reduced so that he can be with his family.

The second appellant who is 18 years old also seeks reduction of sentence as he submits it is harsh. He says that the first appellant is his brother-in-law.

The learned State counsel opposes the appeal stating that the sentence is proper in all the circumstances of the case. The appellants have not learnt their lesson from past prison sentences. The complainant’s house was broken into while he was away and valuable items including jewellery were stolen. Thereafter they were trying to sell these stolen items Articles worth $590 out of total of $1220 have been recovered.

In these appeals both the appellants have committed serious offences and appropriate sentences have to be imposed on the offenders. Here they pleaded guilty and almost half the value of goods have been recovered. Both have previous convictions. The first was sentenced to imprisonment for 9 months for a similar offence on 10 April 2000; the second appellant sentenced to 3 years’ imprisonment on 26 October 1998 for burglary. Evidently these sentences have had no effect on them. No sooner they are released from Prison they commit the present offences.

Bearing in mind the mitigating factors, particularly his plea of guilty, I consider that the sentence on the first appellant is on the high side. The sentence passed on the second appellant is appropriate.

I therefore set aside the sentence of 3 years’ imprisonment on the first appellant and substitute it with one of 2½ years. The sentence passed on the second appellant is neither harsh nor excessive or wrong in principle. It is dismissed.

The appeal of the first appellant is allowed to this extent.

D. Pathik
Judge

At Labasa
24 May 2001