Ledua v State [2002] FJHC 105; HAA0014J.2002S (23 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 014 OF 2002
(Nausori MC Case No. 162 of 2001)

Between:

DRAVERE LEDUA
Appellant

And:

STATE
Respondent

Hearing: 19th April 2002
Judgment: 23rd April 2002

Counsel: Appellant in Person
Mr N. Nand for Respondent

JUDGMENT

The Appellant appeals against his sentence of two years imprisonment imposed on the 3rd of May 2001 in the Nausori Magistrates Court for the following charge:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Cap. 17.

Particulars of Offence

PECELI ROKOLEKUTU and DRAVERE LEDUA, on the 26th day of April, 2001 at Vuci South Road, Nausori in the Central Division, broke and entered the dwelling house of SHALEN KUMAR s/o Akhila Nand and stole therein $3,080.00 cash, Jewelleries valued $5,194.00, two wrist watches valued $144.00, Kenwood Car Stereo valued $600.00, one training bender valued $25.00 and one Coleman Benzine light valued $185.00, all to the total value of $9,228.00, property of the said SHALEN KUMAR s/o Akhila Nand.

His grounds of appeal are in respect of both conviction and sentence. The grounds are:

“1. That I was not given adequate time and facilities to prepare a defence including the right of access to the witness statements.

2. There was unlawful obtained evidence accused against me.

3. To adduced and challenge, evidence and not to be a compellable witness against myself.

4. It was not a fair trial.

5. Alternatively that the Appellant’s sentence was harsh and excessive though the Appellant was first offender.”

The Appellant pleaded guilty to the charge on the 27th of April 2001. Although he was unrepresented, the plea appears to be unequivocal, and the facts outlined by the prosecution disclosed the offence. The facts were admitted by the Appellant.

There are therefore no grounds to entertain an appeal against conviction. I therefore confine myself to the question of sentence.

The facts of the case were that the Appellant and Peceli Rokolekutu were together on the 26th of April 2001. Peceli Rokolekutu broke into the house of one Shalen Kumar and stole the items set out in the charge. The Appellant did not break into the house. However he waited outside as “watchman” and a number of stolen items were hidden in the bush near the house. Both were interviewed by the police, and both admitted stealing the items. Jewellery was recovered from the house of Rokolekutu and a total of $1,099.00 worth of items was recovered.

Rokolekutu had 2 previous convictions. He was 27 years old at the time of the offence. In mitigation he asked that a sentence should be passed on him alone as the Appellant had been waiting outside and did not benefit from the break-in. On his own behalf the Appellant said he was 19 years old, was an unemployed school leaver and that all items had been taken by Rokolekutu. He is a first offender.

The learned Magistrate sentenced both men to two years imprisonment. He took into account the mitigation of both men but said that a deterrent sentence was called for, given the seriousness of the offence and the prevalence of the crime. He ordered that the two year sentence imposed on Rokolekutu was to run concurrent to another sentence imposed in another file.

A perusal of the cases submitted to me by state counsel indicate a tariff of between 2 and 3 years for similar offences. This was certainly a serious offence and the 1st accused Rokolekutu richly deserved his two year term. He deserved no leniency either for his role in the burglary or for his character.

However the Appellant’s sentence should have been adjusted, firstly for his secondary role in the offending, and secondly for his previous good character. Further, the courts must think long and hard before sending young first offenders to prison, particularly when their roles in the offending did not disclose premeditation or planning. This was a case which called for a short sentence for the Appellant. Unfortunately he did not get one. Instead while his appeal was pending, the Nausori Magistrates’ Court took almost one year to send the court record to the High Court. The Appellant has served one year of his sentence awaiting the hearing of this appeal. His case casts an unfortunate reflection on the justice system.

The Appellant’s sentence of 2 years imprisonment is set aside and substituted with a term of imprisonment of 1 year. The term is to run from the 3rd of May 2001, when he was sentenced in the Magistrates’ Court.

Nazhat Shameem
JUDGE

At Suva
23rd April 2002