Caginivalu v State [2008] FJHC 264; HAA087J.2008 (24 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 087 of 2008

Between:

EPELI CAGINIVALU
Appellant

And:

THE STATE
Respondent

Hearing: 17th October 2008
Judgment: 24th October 2008

Counsel: Appellant in person
Ms L. Lagilevu for State

JUDGMENT

[1] The Appellant was sentenced to 3 years imprisonment for burglary. He was charged with breaking into the house of Timoci Ratu by night on the 24th of December 2006, with intent to commit larceny. On a second count, he was charged with stealing from the house of Tmoci Ratu, items worth $3913.00.

[2] He was brought before the Suva Magistrates’ Court on the 28th of December 2006, with a co-accused. He and his accomplice pleaded guilty. On the 11th of January 2007, the Appellant changed his plea. His co-accused, an 18 year old youth with 7 previous convictions, maintained his plea of guilty. On the 6th of November 2006, he was sentenced for another matter and was put on probation for 2 years. He had re-offended while on probation. He was sentenced to 3 years imprisonment for burglary and a concurrent term for 9 months imprisonment for the larceny in dwelling house count.

[3] The Appellant’s case was then adjourned for trial. On the 15th of July 2008, he again changed his plea. The facts were that on the 24th of December 2006 at about 11.30pm, Timoci Ratu locked his house in Kaunitoni Street and left for a family gathering in Lami. When he returned the next day (Christmas day) he saw a kitchen louvre blade had been removed and items stolen. The Appellant and his co-accused were arrested. They both confessed.

[4] These facts were admitted. The Appellant also agreed that he had 3 previous convictions. The Appellant expressed remorse, said he was drunk when he committed the offence, and said he was 25 years old with a wife and two children. He said he was a welder.

[5] The learned Magistrate using the sentence of the accomplice as a guide, sentenced the Appellant to 3 years imprisonment on Count 1 and 9 months on Count 2. They were to be served concurrently.

[6] The Appellant appeals against this sentence saying that no weight had been given to the guilty plea and his cooperation with the police. He also said that he had commenced a welding course at TPAF in Makoi and wanted to complete it. He complained of lack of uniformity between his sentence and that of his accomplice.

[7] The State opposes the appeal saying that the sentence is correct in principle.

[8] The Appellant committed these offences only 3 months after proceedings for giving a false name to a police officer were stayed for 12 months on condition that he did not reoffend. The offence on Count 1 itself attracted a sentence of between 1 and 3 years imprisonment, and the sentence passed on the Appellant was identical to that imposed on his accomplice. The learned Magistrate took into account the plea of guilty and recovery of all the items. I do not consider that he erred in any way. The Appellant cannot claim the right to be treated with the special leniency shown to first offenders. He is not a first offender.

[9] This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
24th October 2008