Turuturuvesi v State [2002] FJHC 190; HAA0086J.2002S (23 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 86 OF 2002S

Between:

TOMASI TURUTURUVESI
Appellant

And:

THE STATE
Respondent

Hearing: 5th December 2002
Judgment: 23rd December 2002

Counsel: Appellant in Person
Mr P. Bulamainaivalu for State

JUDGMENT

The Appellant was convicted, on his plea of guilty of the following offence:

Statement of Offence

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

Particulars of Offence

TOMASI TURUTURUVESI on the 11th day of February, 2002 at Lokia, Rewa in the Central Division, broke and entered the dwelling house of Anjila Wati d/o Dip Singh and stole from therein 3 gold sovereigns valued at $450.00, 1 gold chain valued at $250.00, 1 gold ring valued at $80.00, 1 lee trousers valued at $37.00, 1 camera valued at $50.00, 1 black jacket valued at $50.00, and cash $120.00, to the total value of $1037.00 the property of Anjila Wati d/o Dip Singh.

The facts were that on the 11th of February 2002, the complainant left the house and went to Suva to shop. When she returned at 3pm, she found that her house had been broken into by the ripping of the floorboards. The items specified in the charge were missing. The Appellant was found after police investigations identified him as a suspect. He admitted the offence to the police and was charged. He had sold the stolen items at the Suva market. These facts were admitted, as were 27 previous convictions most of which were for offences of burglary and larceny. He was sentenced to 2 years imprisonment to run consecutive to his current prison term.

The Appellant appeals against sentence on the grounds that the learned Magistrate failed to give sufficient weight to the guilty plea and other mitigating circumstances, and that the 2 year term was harsh and excessive.

State counsel opposes the appeal saying that the tariff for this offence is 18 months to 3 years imprisonment, and that the Appellant was not entitled to any leniency in the circumstances of the case. He referred to a number of authorities to support his submissions.

In the case of Lutu Cevanibau -v- State (1990) Crim. App. 57/90, Fatiaki J reduced a sentence of 3 years imprisonment for an offence of house breaking, entering and larceny, to 18 months imprisonment on the ground that the magistrate had failed to indicate reduction for mitigating circumstances. In Lepani Varani -v- State Crim. App. 33 of 1998 a sentence of 12 months imprisonment was set aside by Pathik J and substituted with a suspended sentence on the ground that the appellant was a young first offender. In Mosese Naso -v- State Crim. App. 35/98 Pathik J reduced a term of 2 years imprisonment, to 18 months, for shop breaking, entering and larceny on the ground that the appellant was a young first offender, and on the ground that his accomplices had received lesser terms. In Saula Kalokalodravu Crim. App. 69/2000, I upheld a term of 3 years imprisonment for an offence of housebreaking, entering and larceny, committed at the height of the political crisis.

On the basis of these authorities, I accept that the tariff for house breaking entering and larceny to be between 18 months and 3 years imprisonment, the question of suspension being reserved for the young offender, or first offender.

In this case the Appellant has 27 previous convictions, the items stolen were not recovered because the Appellant sold them and benefitted from his crime, and the offence is one which is considered serious by the courts and the community. In the circumstances, the sentence is neither wrong in principle nor manifestly excessive. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd December 2002