Smith v State [2002] FJHC 172; HAA0070J.2002S (20 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 070 OF 2002S
(Suva MC Case No. 3818/01)

Between:

EMMANUEL SMITH
Appellant

And:

THE STATE
Respondent

Hearing: 13th September 2002
Judgment: 20th September 2002

Counsel: Appellant in Person
Mr N. Nand for State

JUDGMENT

The Appellant is serving a two year prison sentence for the following offence:

Statement of Offence

LARCENY: Contrary to section 259(1) and 262(2) of Penal Code, Act 17.

Particulars of Offence

Emmanuel Smith and Elia Manoa, on the 28th day of October, 2001 at Samabula in the Central Division, stole eleven Gas Cylinders valued $676.50, the property of Carpenters Mobil Service Station.

He appealed against sentence. At the hearing of the appeal however, he also raised a ground relevant to conviction. That ground is that there were contradictions in the evidence which raised a reasonable doubt about his guilt. Because the Appellant filed his appeal petition in person I have permitted him to argue his ground of appeal against conviction as well as sentence.

The facts

The facts of the case were that the Carpenters Motors Service Station, in October 2001, sold fuel, spare parts, accessories, Fiji Gas and Blue Gas. The gas cylinders were kept in two locked cages outside the service station building. On 28th October 2001, Steven Chand, an employee of the service station came to work at 6.20am and found the cage holding Blue Gas broken with 11 cylinders missing. He could not say how many were full, and how many were empty. Mr Chand was shown 5 cylinders in court. He identified them as Blue Gas Cylinders but could not say if they were the ones stolen. Under cross-examination he denied that they were Fiji Gas cylinders.

On a Sunday in October, the Appellant was seen by Nabung Shah, an employee of Reginald Robert of Regis B.B.Q, at the barbeque stall. He said he had brought a gas cylinder and that Reginald Robert should be woken up. Reginald Robert then instructed Nabung Shah to buy the gas and take them home. In all he bought 11 gas cylinders from the Appellant, for $150.00. He loaded them in his van and took them home. 6 of the cylinders were used in the barbeque stall. All 11 cylinders had been full.

On 19th December 2001, the police took 5 empty gas cylinders away. They were the only cylinders left of the 11 bought from the Appellant. In cross-examination Nabung Shah said that the remaining cylinders had been returned to Fiji Gas. The evidence of Reginald Robert was that he instructed Nabung Shah to buy the gas cylinders. He did not see who brought the cylinders, and the cylinders were kept by Nabung Shah. Under cross-examination, he said that he had no idea how many cylinders had been bought and that he used Fiji Gas.

Under caution, the Appellant initially denied committing the offence, but later admitted it saying that his accomplice had broken the padlock of the cage holding the cylinders and put the cylinders in a mini-van. They then went to 9 miles to sell the gas cylinders to one “Fatty”, the owner of a barbeque stall for $15.00 each. He said he had stolen 11 cylinders in all.

The appeal

The alleged contradiction that the Appellant points to, is the evidence that the cylinders contained Blue Gas, and the evidence that they were returned by Nabung Shah to Fiji Gas. The evidence was certainly that the cylinders contained Blue Gas. The empty cylinders were identified by Steven Chand as being Blue Gas cylinders. However Nabung Shah did not say that the cylinders he bought from the Appellant, were Fiji Gas cylinders. He only said that he returned the empty cylinders to Fiji Gas. This is not necessarily a contradiction. Further, although Reginald Robert said that he used Fiji Gas, he did not say that the cylinders that Nabung Shah bought, were Fiji Gas cylinders or indeed, that he had himself seen the stolen cylinders. Further, even if there had been a contradiction, the Appellant’s admission to the police was that the cylinders he and his accomplice stole, were the cylinders sold to Nabung Shah. In the circumstances, there is no merit in the appeal against conviction.

As to the appeal against sentence, the Appellant’s counsel mitigated on his behalf. He said that the Appellant who had 28 previous convictions, was married with four children and was a farmer. He asked for a suspended sentence.

The learned Magistrate said that the Appellant had been the “master-mind” of the enterprise, and was not entitled to any leniency. He sentenced the Appellant and his accomplice to two years imprisonment each.

I do not consider that he erred. The Appellant’s list of previous convictions abound with offences of dishonesty. He was given a series of suspended sentences in 1999 for house-breaking offences, and has obviously not learnt his lesson. The sentence is within the tariff for larceny, and is therefore not wrong in principle. It is certainly not excessive.

For these reasons, the appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
20th September 2002