Vunivesi v The State [2002] FJHC 131; HAA0048J.2002S (28 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0048 OF 2002

Between:

SAULA VUNIVESI
Appellant

And:

THE STATE
Respondent

Hearing: 21st June 2002
Judgment: 28^th June 2002

Counsel: Appellant in Person
Mr E.J. Toganivalu for Respondent

JUDGMENT

The Appellant was convicted, on his plea of guilty, on the 25^th of April 2002 of the following offences:

FIRST COUNT

Statement of Offence

BURGLARY: Contrary to section 299(a) of the Penal Code, Act 17.

Particulars of Offence

SAULA VUNIVESI, between the 8^th day of June, 2001 and 10^th day of June, 2001 at Nabua in the Central Division by night broke and entered the dwelling house of WAISELE SEREVI with intent to commit a felony namely to steal.

SECOND COUNT

Statement of Offence

LARCENY IN DWELLING HOUSE OF PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to section 270(a) of the Penal Code, Act. 17.

Particulars of Offence

SAULA VUNIVESI, between the 9^th day of June, 2001 and the 10^th day of June 2001 at Nabua in the Central Division stole in the dwelling house of WAISELE SEREVI, assorted clothings valued $5000.00, 1 multi-system video deck valued $1800.00, 1 digital camera valued $1000.00, 1 discman valued $200.00, 1 Alcatel mobile phone valued $300.00, 6 tabuas valued $600.00, 6 mats valued $300.00, 6 sports bag valued $500.00, 1 shopping bag valued $200.00, 1 kit bag valued $200.00, 1 rugby boot valued $1000.00, 1 canvas valued $1000.00, a value amounting to not less than ten dollars, the properties of the said WAISELE SEREVI to the total value of $12,100.00

The facts outlined by the prosecution were that the complainant was a professional rugby player in France, and his house was vacant at the time of the burglary. On 10^th June 2001 the caretaker discovered that the house had been broken into and the items specified in Count 2 were missing. The Appellant was interviewed after investigation and he admitted committing the offences. $5000 worth of the stolen goods were recovered. The Appellant admitted the facts and 24 previous convictions of a similar nature.

The learned Magistrate said that the Appellant had committed the offence on the complainant, who had done a lot for the country. He further said that a person from Kadavu should not behave in such a way to a person from Lomaiviti, that the offences were serious and prevalent and that he would impose a heavier sentence than the tariff because the prisons authority would be giving the Appellant one-third remission. He imposed a sentence of five years imprisonment on Count 1 and a three year concurrent term on Count 2. He ordered that the recovered items be restored to their owner.

The Appellant now appeals against his sentence, saying that he is 25 years old, has a dependent mother and that the five year term was harsh and excessive.

State counsel agreed that the five year term was heavier than the tariff, but said that the sentence was justified because of the Appellant=s previous convictions, and the value of the goods stolen.

The tariff for house-breaking offences in the Magistrates= Court appears to range from a very short term of imprisonment (for the young first offender who might have played a marginal role in the offending) to a three to four year term for the habitual offender who steals items of high value and does not help the police to find his accomplices, or the stolen goods. Of course a higher term than the tariff might be justified in some cases, for instance in the case of a well-planned burglary executed on a house by a gang of people and where there might be some danger that the house was occupied, and that someone therefore might get hurt. However this does not appear to be such a case. The learned Magistrate appears to have put considerable weight on the cultural relationship between the complainant and the Appellant and on the identity of the complainant.

This is quite wrong in principle. Would burglars who break into the houses of people who are not famous, or with whom they share no cultural relationship, then get a lighter sentence? Is it worse to break into a house of a well-known and well-off person, that it is to break into the house of the poor and unknown? This cannot be so. The identity of the complainant is only relevant in a burglary where a particularly vulnerable victim (such as a very old or handicapped person) is taken advantage of, to execute the burglary. If the burglary becomes a robbery, then the characteristics of the victim are relevant to sentence but only in relation to physical or mental characteristics. It is not worse to rob a public servant, than it is to rob a market vendor.

Further, the learned Magistrate gave a heavier sentence because he calculated the one-third remission normally given by the prisons department for good behaviour. This is also wrong in principle. The sentencer, must generally ignore the remission of sentence in determining length of sentence (per Goddard L.J. in R -v- Maguire and Enos (1957) 40 Cr. App. R. 92). In R -v- Burnley Magistrates Court ex p Halstead (1991) Crim. L.R. 215, the Divisional Court said that it was permissible to take into account the effects of remission Awhen justice required the court to do so.@ In that case, the applicant had been sentenced to 12 months detention in a young offender institution and while serving, she was committed for non-payment of fines which was served consecutive to the 12 month term. The effect was to deprive the applicant=s remission entitlement to one-third (from one-half) and this increased her detention period in effect by a total of 74 days. In considering her total term, the court took into account her remission entitlement.

A sentencer may therefore consider remission only when calculating the total term to be served to see whether the totality principle is offended, and whether the total sentence is disproportionate to the offending. The prison remission cannot be taken into account to justify imposing a longer term of imprisonment for the offence before the court.

The reasons given by the learned Magistrate for imposing a heavier sentence than the tariff are based on errors of principle. The five year term of Count 1 is therefore quashed.

In the circumstances of this case, the Appellant did not deserve the leniency normally shown to a young first offender. His long list of previous convictions from 1994, are mainly for burglary and larceny. On Count 2 the total value of the items stolen (most of which were not recovered) totalled $12,100. The Appellant therefore deserved a sentence on the higher end of the tariff. I consider that a sentence of three years imprisonment to be an appropriate sentence on each count. The two counts are in relation to one transaction, and the sentences must therefore be served concurrently with each other, but consecutive to his existing terms of imprisonment.

His appeal against sentence succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
28^th June 2002