Maya v State [2008] FJHC 265; HAA088.2008 (24 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 88 of 2008

Between:

NOA MAYA
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 charged on one count of attempted burglary and one count of damaging property. He pleaded not guilty on the 27th of February 2007 and was granted bail on the 13th of March 2007. Between 25th April 2007 and 12th March 2008, the Appellant did not appear, either because he had absconded, or because he was in custody and no production order was served. He was then granted fresh bail. His trial proceeded on 31st July 2008.

[2] The evidence was that on 24th February 2007, a University lecturer Robin Habea was at his home watching television at 8pm when he saw three men outside his compound. He remained inside and saw them holding something up and asking to be let inside. His wife called the police. The police came and the intruders ran away. He saw that one of the intruders was the Appellant. He found the grill door to be damaged, and one of his car windows to be smashed. A car door was also damaged.

[3] The evidence of Police Constable Koroi Ledua was that at 8.30pm he saw a Fijian man climbing out of the complainant’s main gate trying to escape. He chased the man and arrested him. During the arrest the man (the Appellant) tried to resist using a screwdriver.

[4] The Appellant then changed his plea. He admitted the facts led in evidence, and 6 previous convictions. On the same day he had pleaded guilty on Case No. 402/07 another case of attempted burglary. In that case also the Appellant with another tried to open the main door of the house of Manoj Kumar, and broke the glass on his car door. In that case also the Appellant was arrested as he fled the scene.

[5] In mitigation for both files, the Appellant said that he was 24 years old, single and a casual labourer at the wharf. He is a member of the Seventh Day Adventist Church. He asked for a concurrent sentence.

[6] The learned Magistrate said that such offences were prevalent in the Suva area but took into account the guilty plea and the period of time spent in custody. The aggravating factors were that the offences had been planned, and there was damage to property. The Appellant was sentenced to 14 months imprisonment on Count 1, and 9 months imprisonment on Count 2. The same sentences were imposed in File No. 402/07 and all sentences were to be served concurrently. In total the Appellant is serving a sentence of 14 months imprisonment.

[7] The Appellant appeals against these sentences. He submits that inadequate weight was given to his plea of guilty and other mitigation, and that he had not actually stolen anything.

[8] The State opposes the appeal saying that the tariff for burglary is 2 to 3 years imprisonment (Tomasi Turuturuvesi v. State HAA 86/02, Kuldip Singh v. State [2002] FIJHC 128) and that a 14 month term is appropriate for attempted burglary.

[9] The incidents on the two files were separate and distinct. They would normally have led to consecutive sentences. Further the modus operandi of the two incidents is very similar. The Appellant would appear to be a habitual offender. In these circumstances another court might have been justified in commencing at 2 years imprisonment. In picking a lower starting point, giving credit for a late guilty plea (entered when the prosecution was on its last witness) and ordering concurrent terms, the learned Magistrate was extremely compassionate to the Appellant.

[10] The sentences imposed were not harsh, nor excessive, nor unprincipled. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
24th October 2008