Taukei v The State [2005] FJHC 167; HAA0131.2004 (15 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0131 OF 2004

BETWEEN:

WATISONI TAUKEI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. W. Kuruisaqila – for State

Date of Hearing & Decision: 12th August, 2005

EXTEMPORARY DECISION

As this is an extemporary decision I reserve the right to recall and perfect the judgment as I see fit.

Background

The accused was charged with one count of larceny contrary to Section 317 of the Penal Code (Cap. 17) for setting fire to a dwelling house on the 16th of July 2004.

He was formally charged and pleaded guilty early before the learned Magistrate in the lower court. He was sentenced to 4 years imprisonment. He now appeals that sentence.

In his appeal he emphasizes that there are a number of humanitarian factors that need to be considered particularly concerning the support and care of his family. He also emphasizes the fact that he was a first offender and that the complainant and he have reconciled. He otherwise relies on the very neatly presented written submissions contained on the file.

State’s counsel appears in support of written submissions prepared by a brother prosecutor.

I note that the author of those submissions may have been working on two files at a time and this may explain where some passages of State’s submission appear a little confused particularly paragraph 2.3 needs to be deleted as its relates to an entirely different sentencing matter.

Nonetheless the submissions are very helpful and particularly the analysis of the decision of Donato Vakabale v The State, HAA0051 of 2002.

Decision

The learned Magistrate gave an ex-emptoré sentencing decision that is well structured and easy to follow.

I would normally be reluctant to interfere with the decision of a sentencing Judge at first instance unless I could find some error in principle or the sentence was manifestly excessive.

The sentence commences by correctly marking the gravity of the offence and the fact that Parliament has fixed the maximum term of life imprisonment. The learned Magistrate notes and I agree that arson has always to be treated as a heinous crime because of the potential destruction it poses to both human lives and peoples’ hard earned real property.

In my view the learned Magistrate came to the correct starting point of 6 years imprisonment. He then considered aggravating factors and balanced these out against mitigating factors. The prime feature of the mitigation was the early guilty plea and accordingly for those reasons having calculated up to a sentence of 6 years, the learned Magistrate deducted 2 years or roughly a third of that sentence to reflect the early plea discount and imposed a sentence of 4 years.

That sentence did not, however, take into account the fact that this appellant was a first offender. In the case referred to by the learned prosecutor my sister Justice Shameem observed that for a very similar type of offending a sentence of 4 years in jail was unremarkable. I agree. However, at the bottom of page 3 and the top of page 4 of that judgment her honour says:

“Further the appellant was not entitled to the leniency which might extend to a first offender.”

In my view the Vakabale decision can be distinguished from the present circumstances. In that here we truly have before the court a remorseful first offender and accordingly in my view it is appropriate that his sentence be reduced to reflect that fact.

Accordingly, I quash the sentence imposed by the learned Magistrate on the 20th of July 2004 of 4 years imprisonment and substitute it with a sentence of 3½ years imprisonment.

Gerard Winter
JUDGE

At Suva
15th August, 2005