Vakarauvanua v The State [2004] FJHC 116; HAA0051J.2004S (25 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0051 OF 2004S

Between:

WAISALE VAKARAUVANUA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. D. Prasad for State

Hearing: 18th June 2004
Judgment: 25th June 2004

JUDGMENT

The Appellant was charged on one count of the following offence:

Statement of Offence

LARCENY: Contrary to Sections 259(1) and 262(2) of the Penal Code, Act 17.

Particulars of Offence

WAISALE VAKARAUVANUA on the 5th day of June, 2003 at Suva in the Central Division, stole 2 packets of Juicy fruits valued at $20.00 the property of M.H. Supermarket, Rodwell Road.

He pleaded guilty to the offence on the 19th of January 2004. The facts were that on the 5th of June 2003, he stole the two packets of chewing gum, hid them in his jacket and went past the cashier at Morris Hedstrom’s without paying. The security guard arrested him and took him to the police. These facts were admitted, the Appellant was convicted, and he admitted 44 similar convictions. He asked for leniency and expressed remorse. He had offended whilst serving a suspended sentence for larceny, imposed on the 15th of May 2003. He was asked to show cause why the 9 month term imposed, should not be activated.

The matter was then called on the 30th of January 2004. The Appellant was then represented by Mr. Seru. Mr. Seru told the Court that the Appellant’s employer was present and asked for leniency on the Appellant’s behalf. Mr. Seru asked “for variation of the suspended sentence.”

The prosecution said that the Appellant had 46 previous convictions for the same offences, in respect of which he had received suspended sentences. They asked the court to activate the suspended sentence.

The Court held that the Appellant had been given 25 suspended sentences, or binding over orders and that he had taken advantage of the leniency shown to him. He had disobeyed all the court orders made and had re-offended in this case only 20 days after he was convicted on the 16th of May 2003 also for larceny. He sentenced him to 9 months imprisonment and activated the 9 month suspended sentence in full.

The Appellant now appeals the total sentence of 18 months imprisonment. He says that it is harsh and excessive given the small value of the items stolen.

State counsel submitted that the Appellant appeared to be a habitual petty thief who was possibly suffering from a disorder which led him to such crime. He suggested that the sentence in total was not excessive but that I should consider recommending psychiatric examination as a variation of the sentence.

Dealing firstly with the sentence of 9 months imposed for the substantive offence. The tariff for a first conviction for simple larceny is 2-9 months imprisonment (Ronald Vikash Singh v. State HAA0035 of 2002, Josevata Taucilagi v. The State Crim. App. No. HAA0096 of 2002S). On a second conviction, a sentence in excess of 9 months imprisonment (the length being dependent on the value of the goods stolen and the circumstances of the stealing) is appropriate. Suspension should be considered for first offenders especially in cases of petty theft.

Despite the almost negligible value of the goods stolen in this case ($20 worth of chewing gum) the Appellant has committed the same offence on many occasions in the past, and shows an inability to rehabilitate himself. In Viliame Cavuilagi v. State Crim. App. No. HAA0031 of 2004 Winter J said of an offender with 42 previous convictions for burglary and larceny offences:

“Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Third offenders deserve punishment that fits the circumstances of the crime.”

The 9 month sentence for a repeated offender was therefore correct in principle.

The activation of the suspended sentence was also correct in principle. The Appellant committed the offence within the operational period, and the offence was similar to the substantive offence. He was asked to make submissions about the activation of the sentence and counsel made those submissions for him. It appears that he is employed and that his employer is supportive of him. The only reason why a suspended sentence might not be activated is the relative triviality of the subsequent offence (R v. Moylan 53 Cr. App. R. 590) and the activated sentence should normally run consecutive to the substantive sentence.

The stealing of $20 worth of chewing gum might be considered trivial in the case of a first offender. It is not trivial in this case, considering the Appellant’s long list of petty thefts dating back to 1988. There was no reason for the non-activation of the sentence.

However I consider that the total imposed, of 18 months is excessive given the nature of the total offending. As was said in R v. Bocskei 54 Cr. App. R. 519, where a suspended sentence is ordered to run consecutively with a new sentence of imprisonment, the court should consider whether the aggregate sentence is just and appropriate. In this case I believe that it is too long given the value of the goods stolen in each case. As such I vary the activation of the sentence to 3 months and order that it run consecutive to the 9 month term imposed in the substantive case.

This appeal therefore succeeds to the extent that the activated term is reduced to 3 months imprisonment. The Appellant must serve a total of 12 months imprisonment. I further recommend that the Appellant be examined by the Consultant Psychiatrist of the St. Giles Hospital to ascertain whether his propensity for stealing has psychological and treatable causes. I recommend that the Prisons Authority refer the Appellant for psychiatric examination for that purpose.

Nazhat Shameem
JUDGE

At Suva
25th June 2004