Bale v The State [2004] FJHC 107; HAA0032J.2004S (4 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA032-033 OF 2004S

Between:

VILIAME BALE
Appellant

And:

THE STATE
Respondent

Hearing: 24th May 2004
Judgment: 4th June 2004

Counsel: Appellant in Person
Mr. B. Solanki for State

JUDGMENT

The Appellant was charged, on 28th December 2001 on one count of act with intent to cause grievous harm. He was convicted, after trial, on the 6th of September 2002 and sentenced to 9 months imprisonment suspended for 24 months. On the 24th of November 2003 he was convicted of shop-breaking with intent to commit a felony. His offence was alleged to be committed on the 26th of October 2003 within the operational period of his suspended sentence. He was sentenced to 2 years imprisonment, and his suspended sentence was activated. He appeals against sentence.

The charge in respect of the subsequent offending read as follows:

Statement of Offence

SHOP BREAKING WITH INTENT TO COMMIT FELONY: Contrary to Section 302(2) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME BALE on the 26th day of October, 2003 at Nausori in the Central Division broke and entered into the shop of HASMUKH LAL s/o VALLABH BHAI with intent to commit a felony therein, namely larceny.

The Appellant pleaded guilty. The facts were that on the 26th of October 2003 the Appellant was found on the roof of the complainant’s shop in Nausori. He was cutting the roof and was seen by police officers who surrounded him. He threw a pinch bar at them and fled. He was arrested and charged.

These facts were admitted, as were 24 previous convictions.

In mitigation the Appellant said he was 36 years old, and was married with one child. In his sentencing remarks, the learned Magistrate asked the Appellant why the suspended sentence should not be activated. The Appellant said he wanted another chance because he was about to commence employment with the Public Works Department, and was ready to change his way of life. The learned Magistrate said that the Appellant did not appear to have learnt his lesson and sentenced him to 2 years imprisonment and activated all 9 months of the suspended sentences.

In his letter of appeal to this court, the Appellant said that his sentence was harsh and excessive and that his previous convictions were inaccurate. In court he further submitted that he had not entered the shop and therefore could not have been convicted on the charge.

In respect of the latter submission, the Appellant, being a lay person, is obviously not aware of the statutory definition of breaking and entering. Section 297 of the Penal Code defines breaking and entering as follows:

“A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting, or any other means whatsoever, any door, window, shutter, cellar-flap, or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.

A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.

A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building.”

In this case the Appellant was found cutting the roof of the shop with a pinch bar. When a person is found breaking part of the roof of a shop at 8.30pm, there can be no misunderstanding about that person’s intent. He clearly had an intent to commit a felony therein and the charge was disclosed by the facts. The appeal against conviction fails.

In respect of sentence, the Magistrates’ Court showed considerable compassion in giving the Appellant a non-custodial sentence in relation to the charge of act with intent, an offence which normally results in a custodial sentence. His subsequent offending within the operational period shows that the compassion shown to him may have been misplaced. There was no good reason not to activate the suspended sentence.

As for the sentence of 2 years imprisonment for the subsequent offence, this sentence is at the lower end of the tariff for breaking and entering cases. I do not consider it to be harsh and excessive. Nor is the total sentence excessive in the circumstances of the offending.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
4th June 2004