Tuisoba v The State [2003] FJHC 91; HAA0098J.2002S (28 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA0098 OF 2002S

BETWEEN:

MALAKAI TUISOBA
APPELLANT

Vs

THE STATE
RESPONDENT

Counsel for Appellant: In Person
Counsel for the Respondent: Ms L. Chandra

Date of Judgment: 28th February 2003
Time of Judgment: 9.30 a.m.

JUDGMENT

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

CHARGE

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

Particulars of Offence (b)

MALAKAI TUISOBA between the 8th day of February and the 10th day of February, 2002 at Suva in the Central Division broke and entered the dwelling house of STEPHEN KEEVIL and stole from therein assorted watches valued at $3,880.00, 1 pearl necklace valued at $300.00, 1 bag valued at $40.00, 1 table clock valued at $50.00, assorted CD’s valued at $5,500.00 and 3 bundle fabric material valued at $900.00 all to the total value of $10,670.00 the property of the said STEPHEN KEEVIL.

On the 4th of September 2002, the facts were outlined by the prosecution. They were that the home of the complainant was broken into on the 10th of February. Entry had been gained by forcing open security grills. The items named in the charge to the total value of $4,270.00 were missing. On the 13th of February, the complainant saw the Appellant walking in town with a yellow rucksack which the complainant recognised as being one of the stolen items. He challenged the Appellant, and the police witnessed the incident. The Appellant admitted these facts and 10 previous convictions, two of which were for robbery with violence.

In mitigation his counsel said that he was 24 years old, was unemployed, was married with 2 children and had been working as a security guard when he had committed the offence. He had committed the offence because of peer pressure and had given the stolen property to some of his friend.

Sentencing him, the Learned Magistrate said that the offence was prevalent, the value of the property stolen was high and he was not a first offender. He sentenced the Appellant to 2 years imprisonment.

The Appellant appeals against this sentence saying that he was sentenced on the basis of his previous convictions, and that he wanted to go home to look after his children. In court, he expressed remorse and said he needed to be with his children.

The state opposes the appeal saying that the offence was planned, that the Appellant had not learnt from his past misdeeds and that the 2 year sentence was within the tariff for housebreaking.

Although I have no information before me showing any increase in reported housebreaking offences, I note that the tariff for this offence is between 2 years to 3 years imprisonment.

The Appellant was not entitled to the leniency normally shown to a first offender. No items were recovered and the offence was committed when he was a security guard, a person who should be deserving of trust by all members of the community. His plea for leniency was moving and there is no doubt that his family is suffering as a result of his incarceration. It is unfortunate that offenders think so little of their families at the time they offend.

In all the circumstances despite his expressed remorse I find no reason to find that the sentence imposed by the Learned Magistrate was wrong in principle or manifestly excessive. This appeal is dismissed.

Nazhat Shameem
Judge

At Suva
28th February 2003