Lalagavesi v The State [2004] FJHC 496; HAA0104.2004L (29 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0104 OF 2004L

SAULA LALAGAVESI
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. M. Korovou for the respondent.

Hearing & Judgment: 29 October 2004

EXTEMPORE JUDGMENT

The appellant appeared before the Lautoka Magistrates Court and after pleading not guilty was ultimately convicted by the Learned Magistrate on the 30^th October 2003 and was sentenced to 3 ½ years imprisonment on that same day.

Statement of Offence

HOUSE BREAKING, ENTERING AND LARCENY: Contrary to section 300 of the Penal Code, Cap. 17.

Particulars of Offence

SAULA LALAGAVESI and another on the 19^th day of September, 2003 at Lautoka in the Western Division, broke and entered into the house of ANAND RAO f/n Shiu Madri Rao and stole from therein assorted perfumes, assorted clothes, assorted jewelleries, assorted liquor, assorted CD’s and a camera to the total value of $1,189.00, the property of ANAND RAO f/n Shiu Madri Rao.

The appellant appeals against the conviction and sentence.

With respect to the appeal against conviction, the appellant submits that the caution interview was admitted into evidence improperly, in that he confessed to the offences after being held in custody from Wednesday, the 20^th September 2003. That he was taken to hospital on the 24^th September and that the confessions contained in the caution interview were therefore not voluntary and were unsafe. He says he was assaulted by the police.

The facts as found by the magistrate were that on the 19^th September 2003, the complainant’s wife left for work after securing their home at Field 40, Lautoka and came back to find the house ransacked. Entry was gained from bedroom windows after shutters and louver blades were removed.

After investigation, the police caught the appellant and the complainant identified certain items and his wife recognized the CD’s, perfume, glucometer, cap and camera as theirs. Policemen seized the bag from the appellant and it contained perfume and cap reported stolen. The accused was interviewed and charged.

The Learned Magistrate in his judgment considered the allegations made by the appellant that he was assaulted by the police officers.

The Learned Magistrate after considering all of the evidence said he was satisfied beyond reasonable doubt that the statement was voluntarily given by the accused and it was admissible.

The State Counsel refers the court to Khalika Prasad v The State – Crim. App. 26 of 1994 Labasa where Mr. Justice Pathik at page 3 of that judgment and says:

“Also when an appellate court is called upon to consider the findings of fact by the trial court, and those findings are based on the credibility of witnesses, it is an established rule that the appellate court would not interfere unless the findings of fact could not be supported on the evidence or law or on any other proper grounds – (Mohammed Hakim Khan v Dukh Bhanjan Sharma – Hyne CJ 1956 FLR p. 183 and Kamchan Singh v The Police – Hyne CJ 4 FLR p. 69).

His Lordship also referred and considered what Lord Thankerton said in Watt v Thomas [1947] 1 All ER 582 at 587.

The principles expressed by His Lordship are undoubtedly correct and there is nothing apparent from the judgment of the Learned Magistrate, which would enable one to find differently from the manner in which the magistrate assessed the evidence that was before him. He is of course the best person to make that assessment having seen and heard the witnesses give their evidence.

The appeal against conviction is dismissed.

The appellant has 31 prior convictions, most of those 31 prior convictions are for similar offences, that is house breaking.

I am of the opinion that notwithstanding the matters put in mitigation, that is that he is a changed person, sorry for what he did, 27 years of age and single and he wants to be a good citizen, that the sentence of 3 ½ years is indeed a very modest sentence for the offence that was committed. Taking account of the appellant’s previous record I see no merit whatever in the appeal against sentence. There is nothing before me that would suggest that it is wrong in principle or manifestly excessive and accordingly, the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
29 October 2004