Baleisuva v The State [2002] FJHC 136; HAA0046.2002S (17 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL CASE NO.: HAA0046 OF 2002
{Suva Magistrate’s Court Crim. Case No.: 3 of 2002}

BETWEEN:

ASAELI BALEISUVA
APPLICANT

AND:

THE STATE
RESPONDENT

Appellant - In Person
Respondent - Mr. N Nand

Hearing - 3rd July 2002
Judgment - 17th July 2002

JUDGMENT

BACKGROUND

The appellant was convicted on his plea of guilty to the offence of SHOPBREAKING ENTERING AND LARCENY Contrary to Section 300(a) of the Penal Code, Cap. 17 and sentenced to two years imprisonment.

The particulars of offence are that ASAELI BALEISUVA between the 14^th day of April 2001 and the 15^th day of April 2001 at Nasau, Koro in the Eastern Division broke and entered the shop of WATISONI KAITANI and stole therein 3 gross of Pall Mall (20) valued at $97.00, I gross of Pall Mall (20) valued at $42.00, 1 dozen can of Impulse body spray valued at $50.40, 1 dozen bottle of hairfeed cream valued at $60.00, 6 can of cool charm valued at $23.70, 10 tins of corned beef valued at $30.00 with $610.00 in cash to the total value of $912.10 the property of WATISONI KAITANI.

The appellant says that the sentence of two years imprisonment is harsh and excessive as he is a first offender. He is married with three children.

FACTS

The complainant is a shopkeeper on the island of Koro. The complainant locked his shop and went home. During the night the appellant broke the side of the shop, entered and stole cash and various items. The appellant went away to Vanua Levu and was located some eleven months later.

None of the property was recovered. On appeal the appellant said he used the money to buy drinks. The shopkeeper therefore remains uncompensated for his loss.

SENTENCE

In his sentencing remarks the learned Magistrate expressed disappointment at the fact that the appellant had run away to Vanua Levu to evade detection and arrest. He also said that the complainant was deprived of the hard-earned property and members of the community would be affected.

The above comments of the Magistrate are understandable. The shop was on the island of Koro. There are only three shops on the island according to the appellant. These shopkeepers travel to Suva to get what they want to sell. By breaking into one of the three shops and removing items and $610.00 cash, the appellant had by his conduct virtually disabled as it were one of the shops thereby placing the entire community at a great deal of inconvenience.

The complainant’s shop is a small village shop and for him $912.10 is a substantial loss. There are no banks on the island so people are forced to keep money with themselves. Further there is lack of law enforcement agencies on the island so people should not be allowed to take advantage of these shortcomings.

The appellant broke the side of the shop so some damage must have been caused to the shop as well. He ran away to Vanua Levu in his attempt to evade detection. None of the properties was recovered.

All cases of breaking and entering encompass an element of dishonesty as well as an utter disregard for other’s property. In a small island situation a shopkeeper provides a useful public service. Hence this breaking has to be seen in a different light from that of a shop breaking in a town where customers have ready access to other shops.

The learned Magistrate considered a three-year sentence as a starting point but reduced it to two years in light of mitigating factors. The offence carries a maximum penalty of fourteen years. In the circumstances of this case, I do not consider a sentence of two years imprisonment as harsh and excessive. The appeal is dismissed.

{ Jiten Singh }
JUDGE

At Suva
17th July 2002