Lanyon v The State [2004] FJHC 126; HAA0042.2004 (4 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 42 OF 2004

BETWEEN:

CHARLTON LANYON
Appellant

AND:

STATE
Respondent

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

Date of Hearing: 26th July, 2004
Date of Judgment: 4th August, 2004

JUDGMENT

Background

The appellant pleaded guilty and was convicted of office breaking, entering and larceny. He was sentenced on the 17th of February, 2004 to 2 years imprisonment. He appeals against that sentence.

Particulars of the Offence

Put simply in the early hours of the 17th of February, 2004 the appellant broke into the office of the Minister of Primary Industries located in Suva. Once inside the office he stole two nokia phones and their accompanying earpieces, a bottle of champagne, a bottle of whisky, another bottle of liquor, 2 tabuas – all to the total value of $1300.00. He was disturbed in this enterprise by a diligent security guard. All property was recovered. The appellant has ten previous convictions of a similar nature. He was last sentenced in August 2001 to 3 years imprisonment for burglary.

The Appeal

The appellant was unrepresented. He was advised of his rights to representation and legal aid but declined these. He elected to proceed with the appeal in person. He relied on the contents of his appeal notice.

He asserts that not enough notice was taken of his co-operation and early guilty plea.

He is concerned that the learned Magistrate did not take into account the fact that the property was recovered. He claims a certain “Road to Damascus” conversion and does not want to waste further time in prison.

The State in very helpful written submissions detail the fact that the learned Magistrate did consider the fact the property was recovered. That was a fact read out at sentencing.

Not surprisingly the State emphasizes the appellant’s 10 previous convictions.

The State is of the view that the learned Magistrate considered the aggravating features and balanced these out against the mitigating features.

They then go on to helpfully provide a number of decisions for my consideration.

In an earlier decision of mine Viliame Cavuilagi v The State, Criminal Appeal No. HAA0031 of 2004 (14th April, 2004) I had occasion to review the appropriate tariff. I refer to page 4 of that judgment.

The tariff for this type of offending has received commentary on the following cases:

Case Name	Case Reference	Sentence
Shiu Prasad v State	Cr. App. 28,29,35 of 1993	First offender, 12 months imprisonment
Manoa Laoere v State	Cr. App. 31-34, 61 of 1997	Previous offender ++4 ½ years imprisonment
James Stolz & Others v State	Cr. App. 50 of 1999	Previous offender 2 years imprisonment
Epeli Labalaba v State	Cr. App. 004 of 2001	Previous offender ++2 years imprisonment

From these decisions it is clear that a sentence of imprisonment in the range of 1 to 4 years is appropriate. The upper end of that scale being reserved for especially aggravating features of the offence or the offender. Repeat offenders can expect a sentence of at least 2 years imprisonment.

Cavuilagi had 42 previous convictions and I inferred from his history that he had a semi-professional criminal lifestyle. I dismissed his sentencing appeal and the original sentence of two years imprisonment was upheld.

The Sentence

In a well constructed ruling on sentence the learned Magistrate detailed the salient facts, considered the mitigating and aggravating factors including the fact that all items were recovered and returned to the police officer. He was of the view that these sorts of offences are prevalent, and the Court must adopt a deterrent approach to try and curb this type of crime. That is a sentiment with which I wholeheartedly agree.

The Decision

As I stated in Cavuilagi repetive, 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.

Conclusion

Mr. Lanyon, you have 10 previous convictions. All but one of them are for larceny, housebreaking or burglary. You started offending in 1998. Your last sentence on the 6th of August, 2001 was for 3 years imprisonment. It must have been within months of your release that you again offended. You simply have not learned your lesson. You are choosing to adopt a semi-professional lifestyle as a thief. You are a repetitive, recidivist offender. Your appeal has no merit and is dismissed.

Gerard Winter
JUDGE

At Suva
4th August, 2004