Jeke v The State [2005] FJHC 491; HAA0087J.2005 (23 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0087, 88, 89 & 90 of 2005

Between:

ILISONI JEKE
Appellant

And:

THE STATE
Respondent

Hearing: 15th September 2005
Judgment: 23rd September 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

This judgment is in respect of Cases HAA0087, 88, 89 and 90. The Appellant appeals against his total sentence of 51 months, imposed on him by the Suva Magistrates’ Court in May 2005. In HAA0087 of 2005, he was charged with criminal trespass, threatening violence, throwing object and damaging property. In HAA0088 of 2005, he was charged with burglary and larceny in dwelling house. In HAA0089 of 2005 he was charged with damaging property and larceny. And in HAA0090 of 2005 he was charged with burglary and larceny in dwelling house.

The Appellant initially pleaded not guilty, but after many adjournments he changed his plea in HAA0087 of 2005, on the 17^th of March 2005. The facts were that between 11am on the 10^th of April 2004 and 3am on 11^th of April 2004 at Bureta Street in Samabula he trespassed into the compound of one Hari Karan, threatened to burn down his house, threw a coconut at his house and damaged three louvre blades valued at $5.75. He was well known to the victim who heard the Appellant calling out that if the victim did not throw his wallet out of the window, he would burn his house down. The Appellant ran away when the lights were switched on, but was later apprehended by the police. He denied the allegations under caution.

In HAA0088, the Appellant changed his plea to one of guilty on the 8^th of February 2005. The facts were that the Appellant broke into the house of one Roneel Chand at Bureta Street and stole various items to the total value at about $1300. He was seen walking up Bureta Street carrying the stolen items. He was interviewed under caution and he admitted committing the offences. No items were recovered.

In HAA0089 of 2005, the Appellant pleaded guilty on the 1^st of March 2005. The facts were that on the 12^th of October 2003, the Appellant broke the window glass of a vehicle DV 828 and stole a handbag, 40 mobile phone cases and a Sony CD from it. The car belonged to one Peng Xiao. The Appellant gave the stolen items to a student of the Latter Day Saints College in Tamavua, who sold the items to the victim himself. The victim reported the matter to the police. The Appellant was later apprehended. He confessed to the allegations of larceny and damaging property.

In HAA0090 of 2005 he changed his plea to one of guilty on the 8^th of February 2005. The facts were that on the 1^st of January 2004 between 12.30am and 5am, the Appellant broke into the house of one Dickson Peng and stole various mobile telephones and $1600 in cash. The victim was asleep in his house at the time. The Appellant was later arrested and questioned. He admitted to the breaking in and to the larceny. Two mobile phones, valued at $398.00 were recovered.

These facts were admitted, as were four previous convictions from the Savusavu Magistrates’ Court, for indecent assault, receiving stolen property and house-breaking. The last conviction is dated May 2000.

The Appellant mitigated briefly on each file. He expressed remorse and said that he was a serving prisoner. Sentences were passed separately on each file. In HAA0087 of 2005, she sentenced him to 9 months imprisonment on Count 1, 12 months imprisonment on Count 2, 9 months imprisonment on Count 3 and 9 months imprisonment on Count 4. All sentences were to be served concurrent to each other, but consecutive to the other terms imposed on the remaining files. The total term on this file was therefore 12 months imprisonment.

In HAA0088 of 2005, the learned Magistrate sentenced the Appellant to two concurrent terms of 12 months imprisonment to be served consecutive to the other counts.

In HAA0089 of 2005, she sentenced him to 18 months imprisonment on each count to be served concurrently to each other but consecutive to the other terms.

In HAA0090 of 2005, she sentenced him to 9 months imprisonment on each count concurrent to each other but consecutive to the existing terms imposed.

All sentences were imposed on the 2^nd of May 2000 and were to run from December 2005 when his existing term of imprisonment is completed. In effect, in May 2005, he was sentenced to 51 months or 4 years and 3 months imprisonment. With the balance of his term then being served he is now serving an effective term of 4 years and 11 months imprisonment.

State counsel agrees that this total term is excessive. He referred to the decision of Winter J in Charlton Lanyon v. State Crim. App. HAA0042 of 2004 which laid down guidelines for the sentencing of breaking and entering offenders. He said in that case (at page 3):

“From these decisions it is clear that a sentence of imprisonment on the range of 1 to 4 years is appropriate. The upper end of that scale being reserved for especially aggravating features of the offence or offender. Repeat offenders can expect a sentence of at least 2 years imprisonment.”

In that case a 2 year term was upheld, his Lordship saying that the appellant had chosen to adopt a semi-professional lifestyle as a thief, and that he was a repetitive, recidivist offender.

Individually, the sentences passed on each of these files are correct in principle. They are within the tariff, and in principle, because there is no factual link between the offences, the consecutive sentences were appropriate. However, I agree with the Appellant and State counsel that the total of 51 months was wrong in principle. The Appellant has made a thorough nuisance of himself in Bureta Street, and with the police. He deserved a custodial sentence. However the term he is now serving does not reflect the totality of the offending. The offences he committed were non-violent. Some of the incidents were minor and many of the items stolen were recovered. He pleaded guilty and co-operated with the police. In these circumstances I order that the 12 month terms in HAA0087 and 88 of 2005 be served consecutive to each other but that all remaining sentences on the files HAA 89 and 90 of 2005 be served concurrent to HAA0087 and 88. In total he must serve a 2 year term to run consecutive to his existing term of imprisonment.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
23rd September 2005