Tikoitoga v State [2008] FJHC 167; HAA049.2008 (8 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 049 of 2008

Between:

SUKULU TIKOITOGA
Appellant

And:

THE STATE
Respondent

Hearing: 18th July 2008, 1st August 2008
Judgment: 8th August 2008

Counsel: Appellant in person
Ms W. George for State

JUDGMENT

The Appellant was charged, on the 9th of April 2008 with being in possession of a house-breaking implement, namely a pinch bar, at night, and without lawful excuse.

When the case was first called on the 8th of April 2008, he was remanded because the offence was committed while he was on a community work order. On the 23rd of April, he pleaded guilty to the charge. The facts were that on the 8th of April 2008, he was arrested at Village Six cinemas by Police Constable Leone Tikoitoga who thought that the Appellant was behaving in a suspicious manner. PC Leone then searched the Appellant and found a pinch bar in the back part of his jeans. He was charged with the offence at the Central Police Station.

These facts were admitted. The Appellant had 18 previous convictions from 2006 when he was still a juvenile. He was placed on probation for 9 of those offences (including offences of robbery with violence) but on the same day (the 19th of October 2006) he was sentenced to 2 years and 10 months imprisonment for larceny, concurrent to an 18 month term for office-breaking entering and larceny. Thereafter he was sentenced to a series of terms of imprisonment for offences of larceny, robbery with violence, assaulting a police officer and escaping from lawful custody. He was released from prison in February 2008 and was serving 200 hours of community service when he committed the offence.

In mitigation he said his father was serving a life sentence at Nasinu Prison and that he was financially supporting his mother and sisters.

Sentence was delivered on the 30th of April 2008. Mitigating factors taken into account were the plea of guilty and the personal circumstances of his life. The learned Magistrate said that the aggravating factors were his previous convictions, and the breach of the community work order. The Appellant was sentenced to 12 months imprisonment.

The Appellant now appeals against sentence. At the hearing of the appeal he also challenged his conviction saying that he had a lawful excuse for being in possession of the pinch bar and that was that it was a working tool, used by him to open a tin of paint at a house he was painting. He said he kept it in his back pocket when he went to play games at the Village Six Amusement Centre.

In relation to sentence, he said that other offenders who had committed the same offence, but in more serious circumstances, had received more lenient sentences.

The State opposes the appeal saying that the maximum sentence was 5 years imprisonment and that the tariff was around 12 months imprisonment. State counsel submitted that given the Appellant’s previous record, the 12 month sentence he received was neither harsh nor excessive.

I agree. Singh J in Josua Kania v. The State Crim. App. HAA063 of 2002, considered an appeal against an 18 month sentence imposed on the appellant for the same offence under section 303(b) of the Penal Code. In that case the appellant had been found in possession of a pinch bar, a pair of hand gloves and a kitchen knife, at midnight. He reduced the sentence to 12 months but only because the magistrate had wrongly taken the compulsory one-third remission into account when sentencing.

In Peniasi Tirikula v. The State [2005] HAA0134J.2005S, the appellant was sentenced for a number of offences including one of being found in possession of housebreaking implements at night. He had been found in possession of a pinch bar, pliers and a screwdriver. He was sentenced to 12 months imprisonment and the sentence was upheld by this court, on appeal. The appellant had a number of similar previous convictions.

The Appellant says that he should have got a more lenient sentence because the offenders in other cases have been given the same sentence although they had worse records.

On a perusal of his list of previous convictions, I was concerned to see that the Appellant was in October 2006, given a custodial sentence when he was still a juvenile, and on the same day as he was placed on probation. He was then 17 and although not a juvenile for the purposes of the Juveniles Act, he was a child under the age of 18, and entitled to the special protection of the United Nations Convention on the Rights of the Child. I adjourned the hearing of the appeal to find out what had occurred.

State counsel then provided me with a copy of the relevant judgment of the court, dated the 1st of March 2007 (Juvenile Case No. 59 of 2006). The learned Magistrate received a social welfare report for the Appellant which showed that he escaped when placed on probation and acted in such an unruly manner that a custodial sentence in an adult facility was the only sentencing alternative. The supervisors of his probation orders said that he was a risk to the public. He was then sentenced to his first custodial term. Clearly that decision was correct in law and in principle.

In this case, before me on appeal, I decline to entertain any appeal against conviction. The Appellant is only 19 years old, but he is no stranger to the courts and cannot say that he did not understand the charge or his plea to it. He agreed with the facts and failed to tell the presiding magistrate that he had a lawful excuse for carrying a pinch bar at Village Six at night. In court I found him to be articulate and intelligent. I consider the tin of paint explanation to be an afterthought. The conviction remains.

In relation to sentence, the Appellant is not entitled to the leniency which would be shown to a first offender. He has a string of previous convictions, and re-offended only two months after his release from prison. The 12 month term imposed is correct. Although the learned Magistrate erred in referring to his previous conviction as an aggravating factor the result in the sentence imposed is the tariff sentence and is not wrong in principle.

This appeal is dismissed.

Nazhat Shameem
JUDGE