Naciri v The State [2004] FJHC 323; HAA0063.2003B (25 March 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 63 OF 2003

BETWEEN:

APOLOSI NACIRI
Appellant

AND:

STATE
Respondent

Counsel: Appellant in Person
Ms S Shah for the State

Hearing: 23 March 2004
Judgment: 25 March 2004

JUDGMENT

This is an appeal against sentence. The appellant was sentenced on the 22nd of July 2003 on one count of burglary and larceny in a dwelling house.

He was sentenced to 3 years imprisonment.

Particulars of the Offence

Apolosi Naciri, aged 32 years, farmer of Naidi Village, Savusavu, by night broke and entered the dwelling house of Miguel Ferrer. He stole US$1085.00 in cash, two sun glasses valued US$450.00, one nail cutter valued US$25.00, one red handle multi knife set valued US$50.00, one tweezers valued US$10.00, one flash light valued US$10.00, one gold ring valued US$20.00, one maurice brand wrist watch valued US$3000.00 and one Leatherman Tool valued US$150.00. A total value of US$4980.00.

The victim a tourist from LA, USA came to Savusavu, Fiji to visit his friend Gavin. Gavin had a separate beach house where guests could stay.

The victim closed the house about 9.00pm and went to the main house, returning about 11.00pm. In the morning he woke up and found the items missing. He found the wire gauze at the sea side torn and ripped off.

A search of the appellant’s compound and surrounding area was carried out. A small container containing with the stolen money inside was found. The appellant assisted the Police in finding the other items. The appellant was questioned and admitted he did the breaking, stole the items, buried the cash and other items.

Grounds of Appeal

In a letter seeking leave to appeal the appellant pleads:

1. The learned Magistrate disregarded or slightly valued the following factors of my mitigation upon sentencing:

(a) my co-operation in due course of the investigation
(b) which resulted in the recovery of all properties
(c) my mitigation after a plea of guilty on my first appearance.

2. A mitigation based on the absence of the complainants during the offence was not taken into account.

3. A complaint that by comparison with an earlier sentence of 6 months for resort breaking this sentence was too harsh.

Appeal

At his appearance before me the appellant waived his right to counsel after my warning in that regard. He preferred to proceed on his own with the assistance of the court interpreter. He had prepared and handed up for my consideration a handwritten submission. This well-crafted document talked of the excessiveness of the sentence and enlarged the points on appeal emphasising that the learned magistrate failed to consider the guilty plea, the appellant’s assistance to the police, the fact that there was no commercial gain to him from the offence, and offered a comparative sentencing tariff to describe the severity of this sentence compared with earlier decisions.

His argument in that regard emphasised that for a substantially worse offence involving two counts of resort breaking in June of 2001 he received and served a six month term of imprisonment. This drew my attention to his original points on appeal. I checked the previous conviction sheet that was contained in the Magistrates Court record and discovered an anomaly. Instead of recording a six month sentence of imprisonment the conviction sheet recorded that on the earlier occasion he received a six year sentence. That is a significant difference.

I briefly adjourned the matter and requested the registry to locate the earlier relevant file and check its record. This was done and indeed the appellant was telling the truth. His earlier sentence was one of six months not six years.

Ms Shah on behalf of the State acknowledged the error on the record and then made a proper concession that this may have lead to the learned magistrate imposing a harsher sentence on this occasion.

The Sentence

The Learned Magistrate in a short sentencing judgment only referred to two things. The accused’s previous convictions for resort breaking and his repetitive offending. For these reasons a deterrent sentence of three years imprisonment was imposed.

Sentencing Principle

The State submits the sentence is not harsh or excessive and that the learned magistrate had not erred in his application of the consecutive sentence principle I agree. However the record does not reflect a consideration of the harshness of the penalty overall.

Parliament prescribed the maximum available sentence here as 14 years imprisonment. House breaking and larceny of this kind generally attract sentences in the range of 1-4 years. The upper end being reserved for the repeat offender or offending with serious aggravating features.

Sentences for this type of offending have been discussed in various decisions including James Stolz & Others v the State Criminal Appeal HAA0050 of 1999 4 year sentence for office breaking and larceny reduced to 2 years on appeal by the Chief Justice. Epeli Labalaba v the State Criminal Review HAA0004 of 2001. Sentence of 2 years imprisonment for shop breaking and larceny. Thirteen (13) previous convictions. $5000.00 worth of goods stolen. Upheld on review. Filipe Delana v the State Criminal Appeal HZAA0015 of 2003 house breaking and larceny $3000.00 worth of goods stolen. Repeat offender 12 months imprisonment upheld.

Consecutive sentences should normally be applied for separate offending provided the aggregate term does not appear unjust or unduly harsh in total.

Ms Shah very helpfully concedes that the appellant was cooperative, did plead early and received no benefit from the crime. I fix a starting point for this offending at 2 years imprisonment and apply a discount for cooperation and plea of 12 months resulting in an effective sentence of one year.

Decision

There was clearly mistaken information placed before the learned magistrate on this occasion. The error in the transcription of the appellant’s record was significant. The criminal record was an aggravating feature of that sentence. It clearly influenced the magistrate.

Conclusion
The appeal is allowed. The original sentence is quashed and substituted with one of 12 months imprisonment. I further direct that the appellant’s criminal record be amended to correctly reflect that on 22 June 2001 at Labasa for resort breaking he received six months imprisonment on CF172/01 and six months imprisonment concurrent to that sentence on CF171/01.

Gerard Winter
Judge

At Labasa
25 March, 2004