Tuibua v State [2005] FJHC 188; HAA0077J.2005S (15 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL APPEAL JURISDICTION

CRIMINAL APPEAL CASE NO. HAA0077J OF 2005S

SEMESA TUIBUA

V

THE STATE

Gates J.

Appellant in Person
Ms Lidise for the Respondent [The State]

8th, 15th July 2005

JUDGMENT

Appeal from Magistrates Court against sentence; house-breaking entering and larceny s.300 PC; maximum penalty 14 years; 10 years maximum before Magistrate; tariff 2-3 years imprisonment, $3,000 items stolen; little recovered; delay in finalisation through investigative and judicial process; frequent offender; similar previous convictions; appellant in and out of prison; Magistrate mistakenly treated case as a "home invasion"; offender to be punished for crime committed, not for record; bad record results not in enhancement of sentence but in less leniency; proper disclosure by prosecuting counsel when making concession.

[1] The appellant appeals against his sentence of 3 years imprisonment. On 15th March 2004 he was convicted on his own plea of guilty before a Resident Magistrate in Suva of one count of house breaking, entering and larceny contrary to section 300 of the Penal Code. He was sentenced on 18th June 2004, some 3 months later.

[2] The facts were that in 2001 the complainant had locked his house and gone out shopping. The Accused broke in through the back door and stole household machinery items and clothing worth over $3,000. Upon arrest for another matter the Accused was found to be in possession of some of the missing items. He was interviewed and admitted the offence. Only $160 worth of clothing and a CD were recovered.

[3] The appellant asked for a concurrent sentence to one he was already then serving and the Magistrate acceded to the submission. It was however 3 months after his plea before the appellant was sentenced. He pointed to the fact that this was an old offence. From date of offence to final disposal after sentence the case took 2 years 9 months as it went through the investigative and judicial process. He was first brought to court as late as November 2002, presumably because the investigation took some time.

[4] He told the Magistrate he had a family. He told this court the same, adding that he had two daughters. He said he had been 3 months on remand, though there was some overlapping whilst he was serving a prison term. Indeed the previous convictions record as tendered, no doubt because this case had been prepared some years ago, only went up to July 2001. There were three pages to that record commencing in 1990 and extending to 2001. It is a dismal record. But the appellant claims he is changing. There is no support for that optimistic suggestion from this record. Chiefly, it lists convictions for house-breaking, burglaries, larcenies, robberies, escaping, and unlawful use of motor vehicles, and the appellant has been in and out of prison for this offending.

[5] The appellant informed the Magistrate that he was due to be released from prison in March 2005. The Magistrate then wrote a careful point by point sentencing judgment.

[6] The Magistrate referred to the need to protect people in their own homes. The occupant was not at home at the time. This was not therefore a home invasion case where owner and family had been frightened by an intruder, a much more serious circumstance. The Magistrate said the sentence had to be increased also because of the appellant’s record of similar previous offending.

[7] It has oft been said an accused is not to be sentenced for his record, bad as it may be, but for the offence of which he has just been convicted. He has already received and served his punishment for the previous wrong doing: R v Queen [1982] Crim. LR 56; Baljit Singh v State (unreported) Fiji Court of Appeal Cr. App. No. 70 of 1987. But as Pain J stated in Leone Nairavi v State (unreported) Cr. App. HAA0042.96S "with his history of offending he has exhausted any claim for leniency". It is an approach of emphasis rather than semantics.

[8] The tariff for house-breaking, as Ms Lidise properly concedes, is between 2-3 years: Malakai Tuisoba v State Crim. App. HAA098.02S; Waisiki Navuso v State HAA039.04S, 4th June 2004. The Magistrate did not refer to the tariff and had started his calculation at a 6 year sentence, incorrectly, because he was treating the case as one of "home invasion" and he had considered enhancement of sentence was demanded because of the appellant’s bad record.

[9] The appropriate starting point on the tariff was 3 years. The appellant pleaded guilty and deserves some discount for that plea. Other mitigation raised was not significant. He is entitled to a one third discount for the plea. I consider the appropriate sentence here to have been one of 2 years imprisonment concurrent to his then term. I allow the appeal to that extent and quash the 3 year term, substituting it with one of 2 years imprisonment, concurrent.

[10] It is noteworthy that this is an identical sentence to that given in a factually similar case of house-breaking involving the same appellant: Semesa Tuibua v The State (unreported) Cr. App. No. HAA034.04S, 6th May 2004. As a result of today’s sentence, the appellant will shortly be released. He accepts he is getting a trifle old for this kind of life, most of which is spent uncomfortably in prison, away from his young family. He should remember especially Mr Justice Pain’s remarks and expect a barrenness of leniency when next he comes up before the bench for sentence.

[11] Finally, Ms Lidise observed that the appellant said he knew her. She wanted it noted that she and the appellant may have come from the same geographical region or area in Fiji although she was unaware of knowing the appellant. In case it might have been commented on and in view of her concessions on sentence, she thought it better to disclose this supposed connection. Ms Lidise was wholly correct in her disclosure and she has acted in a principled way in the best traditions of the Bar: R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [1999] UKHL 1; [1999] 2 WLR 272 (HL). She is to be commended for her conduct. It goes without saying her concessions were in line with sentencing law and they were as principled as her disclosure.

[12] In summary, the appeal against sentence succeeds. The sentence of 3 years imprisonment is quashed, and in substitution the appellant is sentenced to a term of 2 years imprisonment concurrent to any other term he has been serving.

A.H.C.T. GATES
JUDGE

Appellant in Person
Solicitors for the Respondent [The State]: Office of the Director of Public
Prosecutions, Suva