Navuso v The State [2004] FJHC 106; HAA0039J.2004S (4 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0039 OF 2004S

Between:

WAISIKI NAVUSO
Appellant

And:

THE STATE
Respondent

Hearing: 27th May 2004
Judgment: 4th June 2004

Counsel: Appellant in Person
Ms P. Madanavosa

JUDGMENT

This is an appeal against sentence. The Appellant was charged as follows:

Statement of Offence

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

Particulars of Offence

WAISIKI NAVUSO, between 6th day of January, 2004 and 7th day of January, 2004 at Lakena No. 1 Hill, Nausori in the Central Division broke and entered the dwelling house of SHAMEEM BANO d/o ALLADIN and stole from therein an Amplifier $600.00, a DVD deck $300.00, 4 car radio $1,000.00, 2 Nokia brand mobile phones $700.00, assorted clothing $1,000.00, 68 CDs $1020.00, 2 microphones $160.00 and 3 school bags $67.00, all to the total value of $4,847.00, the properties of the said SHAMEEM BANO d/o ALLADIN.

He pleaded guilty on the 9th of January 2004 and the facts were outlined. They were that on the 7th of January 2004 the complainant returned to his home after a night away and found his house ransacked. The items stated in the charge were missing. The Appellant was later arrested and he admitted the offence under caution. He showed the police where he had hidden the stolen items, and all items were recovered except for four car radios. The Appellant was charged. He was then serving a sentence as an extra-mural prisoner for the offence of assault occasioning actual bodily harm. He had been serving a two month term of imprisonment. In mitigation he said he did not want to stay in prison. The court sentenced him to 18 months imprisonment.

In his appeal to this court, the Appellant submitted that the sentence was harsh and excessive. He said, in a letter dated the 18th of February 2004 that he was 19 years old, and a farmer, that he took care of his mother and sister and that his three brothers were all in prison.

His appeal is out of time by a week, but because he is a young offender in custody, and because I consider that his appeal has some merit, I have granted him enlargement of time. The State opposes the appeal, saying that the sentence falls within the tariff for breaking and entering offences.

It is correct that the tariff is between 2 to 3 years for offences of housebreaking entering and larceny (Malakai Tuisoba v. State Crim. App. HAA0098 of 2002S). This would indicate that a starting point should be identified from within the tariff. In this case, given the value of the goods stolen and the level of inconvenience to the house owner, a 2 year term would be justifiable as a starting point. However the Appellant was entitled to considerable discount for his age, the fact that he had never served a term in prison, his guilty plea, his assistance in the recovery of the goods and the reconciliation with the complainant.

In relation to this last factor, the Appellant said in court that he had stolen from a person he had known for 6 years. He expressed shame and remorse, and said that he had apologised to the complainant through his mother. The complainant had sent a message of forgiveness to the Appellant.

I consider that this factor, of the expression of apology, and remorse, had the lower court known of it, might have reduced the Appellant’s sentence considerably. To reflect all the mitigating factors, I reduce the sentence to 9 months imprisonment. It is unfortunate that a 19 year old offender, is serving a term of imprisonment at all, and I note that he has received very little guidance from his older brothers who are in prison. I consider that although a 9 month term is well below the tariff for house breaking offences, it is justified in the special circumstances of this case.

This appeal succeeds to the extent that the sentence is reduced to 9 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
4th June 2004