Taucilagi v The State [2002] FJHC 189; HAA0096J.2002S (23 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0096 OF 2002S

Between:

JOSEVATA TAUCILAGI
Appellant

And:

THE STATE
Respondent

Hearing: 10th December 2002
Judgment: 23rd December 2002

Counsel: Ms P. Narayan for Appellant
Ms L. Chandra for State

JUDGMENT

The Appellant appeals against his sentence of 18 months imposed by the Suva Magistrate=s Court for the following offences:

Case File No. 535/02

Statement of Offence

LARCENY: Contrary to Section 259 and 262 of the Penal Code, Cap. 17.

Particulars of Offence

Josevata Taucilagi on the 18^th day of September, 2002 at Nausori in the Central Division, stole 1 Kenwood Speaker valued $260.00, 4 mag wheel cap valued $48.00, 1 carry bouy sign valued $60.00, 1 amplifier valued $700.00, 2 pioneer speaker valued $210.00, 1 boom box valued $80.00, to the total value of $1,358.00 from van registration no. 257 and CQ 382 the property of Vijay Munish Sharma s/o Dhirendra Prasad.

Case file No. 536/02

Statement of Offence

LARCENY: Contrary to Section 259 and 262 of the Penal Code Cap. 17.

Particulars of Offence

Josevata Taucilagi on the 17^th day of September 2002 at Nausori in the Central Division, stole 1 equalizer valued $170.00, 1 CD charger valued $675.00, 1 pioneer radio valued $596.00, 1 nokia voda phone valued $329.00, 2 speaker valued $250.00, 13 CD valued $140.00, to the total value of $2,190 from van registration number DG 521, the property of Nil Nilesh Prasad s/o Nirendra Prasad.

The grounds of appeal are that the sentences, of 9 months imprisonment on each count to be served consecutive to each other, are severe, harsh, excessive and wrong in principle.

The facts of the case, which were accepted by the Appellant, were that in Case No. 535/02, the complainant owned two express vans. On 17^th September 2002, he locked his van up after midnight, in his compound in Wainibokasi. The Appellant with his accomplice, entered the compound at night and broke into the vehicles and stole the items in the charge. On arrest, the Appellant admitted committing the offence.

The facts in Case No. 536/2002, were that the complainant owned an express van. On 17^th September 2002, he parked his van at 10 miles, Nasinu and locked it. The Appellant, with his accomplice broke into the van and stole the items. On arrest they admitted committing the offence. On this charge, $1,154.00 worth of items was recovered.

The Appellant admitted two previous convictions. He said he was 20 years old, a married man and that he was employed as a van driver at Wainibuku. He said he had sold the car radio to a taxi driver.

The Appellant was sentenced to 9 months imprisonment on each charge. In comprehensive submissions, at the hearing of this appeal, counsel for the Appellant submitted that consecutive sentences were not appropriate for offences committed in the course of a single criminal transaction, and that in any event, a custodial sentence was not suitable for a young offender with one previous conviction for larceny of duck.

State counsel submitted that the two charges arose out of two separate transactions, that a 2-9 month sentence was the tariff for a first conviction, for larceny (Ronald Vikash Singh -v- State HAA0035 of 2002) and that a sentence in excess of 9 months imprisonment should therefore be imposed for a second conviction. She submitted that a total sentence of 8 months imprisonment was therefore appropriate. Further, she said that because the Appellant was stealing from members of his own local community, he had also betrayed the trust of those who knew him.

The Appellant=s list of previous conviction disclose only one previous conviction (prior to the offences of 17^th September 2002). That conviction was for the offence of larceny of a duck in March 1999 for which he was fined $20.00. Although the offence is not a very serious offence, it is an offence of dishonesty. The Appellant has lost his right to be treated with the leniency normally shown to a first offender. A non-custodial sentence could certainly have been considered for a first offender. However the Appellant had offended before and in respect of an offence of larceny. I accept State counsel=s submission that a custodial sentence in excess of 9 months imprisonment on each count was appropriate in the circumstances.

The remaining question is whether the sentences ought to be served concurrently. Although the offences were committed on consecutive days, the Appellant committed them with the same accomplice and using the same method. They were on a van-breaking spree. The offences were closely linked by time and method. In the circumstances, the sentences ought to be served concurrently. This appeal therefore succeeds to the extent that the sentences on each count must be served concurrently.

Nazhat Shameem
JUDGE

At Suva
23^rd December 2002