Kaloumaira v State [2008] FJHC 14; HAA 016.08 (8 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 016 of 2008

Between:

WAISEA KALOUMAIRA
Appellant

And:

THE STATE
Respondent

Hearing: 1st February 2008
Judgment: 8th February 2008

Counsel: Appellant in person
Ms L. Lagilevu for State

JUDGMENT

The Appellant was charged with the larceny of $700 cash, on the 14th of July 2007. The cash was the property of the Garrick Hotel. The case was first called on the 6th of August 2007. The charge was read and explained and the Appellant asked for time to engage a lawyer. On the 17th of August he waived his right to counsel and pleaded not guilty. On the 7th of November he changed his plea after he had received first and second phase disclosure.

The facts were that on the 14th of July 2007, Emily Wati, a barmaid at the Garrick Hotel placed a plastic bag with $700 in it below the bar counter while she was washing mugs. The Appellant was at the hotel having a drink, when he saw it and stole it. Another customer witnessed the incident and informed Emily Wati. She asked the Appellant to return the money but he denied taking it. The matter was reported to the police. Under caution, the Appellant admitted the offence.

These facts were admitted. The Appellant also agreed that he had 47 previous convictions. In mitigation he said he was willing to pay the money back if he was given time. He said he was employed as a driver and expressed remorse. He had apparently also said the same in his caution interview.

The learned Magistrate found that a custodial sentence was appropriate and sentenced the Appellant to 9 months imprisonment.

In his appeal the Appellant says that he should have been permitted to pay the victim back. Further he says that the learned Magistrate failed to take into account his guilty plea, and his willingness to compensate the victim. In his written submissions in court, he confirmed that he had always been willing to compensate the victim and that he was in fact a driver and in a position to earn enough to do so. He said that he had been discharged from prison in 1998 and that he had made a new life for himself until 2005 when he was bound over for a drunk and disorderly charge. He said that since 1998 he had been making sincere attempts to rehabilitate himself.

The State opposes the appeal saying that the plea was unequivocal, and that the sentence was at the lower end of the tariff for larceny on a second conviction.

The Appellant has been convicted for larceny before and the maximum sentence was therefore 10 years imprisonment. On a second conviction, the tariff is between 6 months to 12 months. The amount stolen was $700 and sadly despite the lapse of 6 months since the date of the offence, the Appellant has made no attempt to pay the victim back. Indeed, he did not do so although he was on bail from the 6th of August 2007 (when he was first brought to court) and the 7th of November when he was sentenced. If compensation is to be accepted as a mitigating factor, it must be paid as a measure of genuine remorse, not as a means to escape a custodial sentence.

In this case, I would have started at 12 months imprisonment, and after taking into account the guilty plea (which was not at the first available opportunity) and the amount stolen, would have sentenced the Appellant to between 6 to 10 months imprisonment. The 9 months imposed is correct in principle.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
8th February 2008