Vaniqi v State [2008] FJHC 348; HAA080.2008 (12 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 080.08

Between:

MANASA RAMASI VANIQI
Appellant

And:

THE STATE
Respondent

Hearing: 21st November 2008
Judgment: 12th December 2008

Counsel: Appellant in person
Mr. P. Bulamainaivalu for State

JUDGMENT

[1] The Appellant appeals against a sentence of 9 months imprisonment imposed by the Navua Magistrates’ Court for larceny.

[2] The Appellant was charged with housebreaking entering and larceny on the 6th of March 2007. The charge alleged that on the 29th of January 2007, the Appellant broke and entered the villa of Helen Tiltins and stole personal items to the total value of $932. The case was called on the 16th of March 2007 in Suva and the case transferred to Navua Magistrates’ Court. On the 20th of March 2007, in Navua the Appellant pleaded not guilty and was granted bail to allow him to get legal advice. He did not appear in court on the 23rd of April 2007, but did appear two days later. The bench warrant issued on the 23rd of April was cancelled. However he failed to appear again on the 16th of June 2007 and another was issued. He appeared on the 15th of August 2007 and a hearing date was set for the 24th of September 2007. On that day however, the prosecution witnesses were out of the country, and the trial date was vacated. It was vacated again for the same reason on the 4th of December 2007. On each occasion the Appellant objected to the delay, saying that he was a serving prisoner, and on the 4th of December, in employment. A hearing date was set for the 4th of March 2008. On that date the Appellant asked for time to instruct counsel. He was given until the 12th of March 2008 when he said he would represent himself.

[3] On the 23rd of April 2008, the prosecution asked for an adjournment saying the complainant was not available. On the 7th of May 2008 the Appellant was represented by the Legal Aid duty solicitor but he preferred to be represented by a lawyer from the private Bar. He was then in remand for another case.

[4] A hearing date for the 3rd of June was vacated because the Magistrate was ill, and the hearing finally proceeded on the 30th of June 2008. The charge was amended to one of larceny by finding, contrary to section 259(2)(iv) of the Penal Code. The charge now read that on the 29th of January 2007 at Navua in the Central Division, he stole one portable Sony Play Station valued at $374 the property of Helen Tiltins which he found at Admiral Circle, Pacific Harbour. The Appellant pleaded guilty to this charge.

[5] The facts were that on Monday 29th January 2007 the house of Helen Tiltins was broken into and several items (including the Play Station) were stolen. The police received information that the Appellant was trying to sell two Play Stations at Pacific Harbour, and arrested him. The Appellant denied the break in but admitted finding the Play Station and selling it. He helped the police recover it.

[6] These facts were admitted. The Appellant also admitted 14 previous convictions most of which were for larceny, burglary and housebreaking. The last conviction was in May 2007, for which he served 9 months imprisonment.

[7] In mitigation, the Appellant said he was 26 years old, single, and employed as a casual worker at J.S. Hill. The learned Magistrate sentenced him on the 9th of July. She treated the case as one of simple larceny with a previous conviction of a felony. The maximum sentence was therefore 10 years imprisonment. The tariff was over 9 months because of the previous conviction for larceny. She said that the Appellant was a persistent offender and considering the mitigation, early guilty plea and value of the items, she sentenced him to 9 months imprisonment.

[8] The Appellant says that this is harsh and excessive. The State disagrees, referring to Ronald Vikash Singh v. State HAA 35J.2002S; Josevata Taucilagi v. State HAA 96J.2002S and Waisale Vakarauvanua v. State HAA 5J.2004S. State counsel submitted that with the Appellant’s previous record, he was not entitled to leniency and the 9 month term was correct in principle.

[9] I agree. The Appellant is a repeat offender. In Viliame Cavuilagi v. State Crim. App. HAA 0031 of 2004, Winter J said of an offender with 42 previous convictions for burglary and larceny:

"Repetitive, recidist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreak havoc on the lives of law-abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime."

[10] In that case his Lordship upheld a 9 month term for burglary. In this case the Appellant has committed the offence of larceny by finding within the same time frame as two other cases of theft and burglary. He received a 9 month term for those other offences in May 2007. The court might have justifiably sentenced him in this case to a sentence between 15 to 18 months. However after reduction for guilty plea, to take into account the periods of delay caused by the non-availability of the prosecution witnesses, a 9 month term would have been correct in principle. Although the learned Magistrate arrived at her sentence in a different way, the result is a correct one. I decline to interfere with it. The Appellant asked to have his five months in remand deducted from the sentence. However the record indicates that he was remanded in this case, only on the 9th of April 2008. It appears that he was earlier remanded in another case in Suva. However he asked for bail on the 7th of May 2008 and it was refused. He was then remanded in custody until the 17th of June 2008 when he was granted bail. In this case he was remanded only for 2 months. This period should have been deducted from the sentence and I consider that it should be deducted on appeal.

[11] The sentence is therefore reduced to 7 months imprisonment. The appeal succeeds to this extent.

Result

[12] The appeal against sentence is allowed. The 9 month term is reduced to 7 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
12th December 2008