Talau v The State [2005] FJHC 212; HAA0078J.2005S (5 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0078 of 2005S

Between:

NEMANI TALAU
Appellant

And:

THE STATE
Respondent

Hearing: 29th July 2005
Judgment: 5th August 2005

Counsel: Appellant in Person
Mr. A. Rayawa for State

JUDGMENT

The Appellant was sentenced to 18 months imprisonment for the offence of larceny from person. The charge reads as follows:

Statement of Offence

LARCENY FROM PERSON: Contrary to Section 271 of the Penal Code Act 17.

Particulars of Offence

Nemani Talau on the 26^th day of February 2005 at Suva in the Central Division, stole cash of $4.00 from the person of Alfred Tora.

The Appellant pleaded guilty to the charge. The facts were that the complainant is a 12 year old boy. He was walking along Terry Walk when the Appellant came up behind him, held his hand and took $4.00 cash from his pocket. The Appellant then ran away. He was found by a police officer at a nearby restaurant. The complainant identified him. He still had the $4.00 in his pocket. He was charged with the offence of larceny from person. These facts were admitted. The Appellant has 10 previous convictions, most of which are for the offence of larceny. His last conviction, in 2003, was for robbery with violence, for which he served 18 months imprisonment.

In mitigation, he said he was a 21 year old fisherman and expressed remorse. At the hearing of this appeal, he said he committed the offence because he was drunk.

In her sentencing remarks, the learned Magistrate said that the Appellant had failed to show any signs of reform and that he had become a nuisance to society. She said a deterrent sentence was called for because the victim was a 12 year old boy.

He now appeals against this sentence, saying that it is harsh and excessive. He says that inadequate weight was put on his guilty plea and co-operation with the police. He says that his family is suffering because of his incarceration and that the theft was of only $4.00.

The State opposes the appeal. He says that there is an element of bullying in this case which calls for a custodial deterrent sentence. He says that the sentence is within the tariff for larceny from person cases and that the High Court should avoid “tinkering” with sentences unless they were wrong in principle.

This is a case of “pick-pocketing.” The English authorities, as I said in the case of Poniasi Saulekaleka v. The State HAA0050 of 2001S, suggest that there is a tariff of 12 to 18 months imprisonment. In that case I picked a starting point of 15 months imprisonment, and reduced it by 5 months imprisonment for the guilty plea. The sentence was reduced from 2 years imprisonment to 10 months.

I would pick a lower starting point in this case because of the small value of the money stolen. I pick 12 months imprisonment. Aggravating factors were the age and vulnerability of the victim and the fact that the police had to catch the Appellant before they could recover the money. Mitigating factors are the guilty plea, the expressed remorse, the recovery of the money and the Appellant’s youth. He is not entitled to the leniency usually shown to first offenders. Taking these matters into account, I arrive at a sentence of 12 months imprisonment. Given his record of offending in a similar way, there can be no question of suspension.

The learned Magistrate erred in failing to pick a starting point from within the tariff, and in passing a sentence which was at the highest end of the tariff.

This appeal is allowed. I quash the 18 month term and substitute it with a term of 12 months imprisonment to run from the 19^th of April 2005.

Nazhat Shameem
JUDGE

At Suva
5^th August 2005