Tirikula v The State [2005] FJHC 427; HAA0134J.2005S (18 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. Nos: HAA00134, 135 & 136 of 2005S

Between:

PENIASI TIRIKULA
Appellant

And:

THE STATE
Respondent

Hearing: 11th November 2005
Judgment: 18th November 2005

Counsel: Appellant in Person
Ms H. Tabete for State

JUDGMENT

The Appellant was sentenced to a total of five years imprisonment on the 31^st of August 2005, on two separate files. They composed one term of 3 years imprisonment, and one term of 4 years to be served concurrently with each other but consecutive to a one year term in Case 1454/05. He appeals against the total sentence.

In Case 2868/02 he was charged on one count of house breaking entering and larceny. The charge reads as follows:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to section 300(a) of the Penal Code, Act 17.

Particulars of Offence

PENIASI TIRIKULA, on the 17^th day of December, 2002 at Samabula in the Central Division, broke and entered the dwelling house of NILESHWAR GYAN s/o Gyneshwar and stole from therein $20.00 cash, one ring valued $180.00 and one pair earring valued at $100.00 to the total value of $300.00 the properties of the said NILESHWAR GYAN s/o Gyneshwar.

His initial plea, on the 19^th of December 2002, was not guilty. He was granted bail, but failed to appear in court on the 1^st of April 2003 and was fined for the breach of bail. There was then further delays because of his failure to appear in court. On the 3^rd of August 2005, he changed his plea to one of guilty.

The facts were that on the 17^th of December 2002 at 2pm, the Appellant broke into the vacant house of Nileshwar Gyan in Samabula by forcing open a burglary grill, and stole the items in the charge. These facts were admitted, as were 22 previous convictions all of similar character.

In Case 1808 of 2003 (HAA00135.2005) he was charged as follows:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to section 300(a) of the Penal Code, Act 17.

Particulars of Offence

PENIASI TIRIKULA, on the 14^th day of August 2003 at Samabula in the Central Division, broke and entered into the dwelling house of MOHAMMED SAA s/o Mohammed Samad and stole from therein five gold bangles valued at $3,000.00, six pairs gold earrings valued at $2,000.00, one set diamond earring valued at $3,000.00, three gold chains valued at $3,000.00, three gold rings valued at $1,000.00, one DVD player valued at $1,000.00, one sterling silver chain valued at $45.00 and one silver watch valued at $85.00, to the total value of $13,130.00 the properties of MOHAMMED SAAD s/o Mohammed Samad.

Again his initial plea was not guilty, and he was granted bail. A trial proceeded on the 11^th of November 2003. The evidence led was that the complainant, Mohammed Saad left his house on the 14^th of August 2003. It was vacant. When he returned he found that the bathroom window had been forced open and his house ransacked. $13,000 worth of personal property had been stolen. Some of the property was recovered, including a pair of gold earrings and watches, which were identified by the witness.

After hearing the complainant’s evidence the trial was further adjourned. The Appellant was remanded in custody. He was granted bail on the 9^th of December 2003 but failed to appear on the 9^th of March 2004. A bench warrant was issued. He was brought before the court on the 3^rd of August 2005. He changed his plea to one of guilty. He agreed with the facts and with 23 previous convictions.

In Case No. 1454 of 2005 (HAA00136.2005) the Appellant was charged as follows:

FIRST COUNT

Statement of Offence

CRIMINAL TRESPASS: Contrary to Section 197(2) of the Penal Code, Act 17.

Particulars of Offence

PENIASI TIRIKULA on the 2^nd day of August 2005 at Suva in the Central Division, by night entered the compound of the Royal Suva Yacht Club without lawful excuse.

SECOND COUNT

Statement of Offence

BEING FOUND BY NIGHT IN POSSESSION OF HOUSE BREAKING IMPLEMENT: CONTRARY TO Section 303(a) of the Penal Code, Act 17.

Particulars of Offence

PENIASI TIRIKULA on the 2^nd day of August 2005 at Suva in the Central Division, was found in the night at the Royal Suva Yacht Club in possession of house breaking implements namely pinch bar, two pliers and a screwdriver without lawful excuse.

He pleaded guilty on both counts and admitted 20 previous convictions. The facts were that on the 2^nd of August at 7.15pm, the security officer of the Yacht Club arrested the Appellant when he was inside the Yacht Club compound and when he jumped into the prisons compound over the fence. He was found in possession of a bag containing house-breaking implements. He was arrested and charged by the police.

All three cases were dealt with together. The Appellant mitigated on the 3^rd of August 2005. He said that he was an unwanted child who earned his living by committing crimes. He said he wanted to go back to his village and plant and that he was remorseful thus his guilty pleas. On the same day, the learned Magistrate sentenced the Appellant in 1454/2005, to one year imprisonment on each count to be served concurrently.

Sentence on the remaining files were delivered on the 31^st of August 2005. On Case 1808 of 2003 (HAA00135.2005) he was sentenced to 4 years imprisonment, and to a concurrent term of 3 years imprisonment on 2868/02. His total term is 5 years imprisonment.

The Appellant says that this total term is harsh, excessive and wrong in principle. He further says that his prison conditions are degrading and that he was persuaded by the learned Magistrate to plead guilty in return for leniency. In his submissions in court, he elaborated on these grounds, saying that his sentence in total was far in excess of comparable sentences imposed on other offenders for the same type of offending.

The State opposes the appeal saying that the individual sentences are within the tariff and that the total sentence is not excessive for someone who appears to be a recidivist.

I agree. The Appellant has 23 previous convictions. The offences are very similar, housebreaking, burglary, robbery and larceny. They date from 1992 and the courts have, in the past, shown him considerable leniency. The offences on these files are not petty. In one case, the Appellant stole $13,000 worth of personal items. Very little was recovered. It is difficult to give the Appellant credit for remorse and youth, when he has shown no evidence of an attempt to rehabilitate himself. He is a habitual offender and society must be protected from his unlawful habits.

I accept his submissions that prison conditions are over-crowded. However, I have no option but to find that his sentence was correct in principle and that he must serve it.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
18^th November 2005