Kaloumaira v State [2008] FJHC 63; HAA020.2008 (11 April 2008)

IN THE HIGH COURT OF THE FIJI SIALNDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No: HAA 020 OF 2008

BETWEEN

WAISEA KALOUMAIRA
Appellant

AND

THE STATE
Respondent

Appellant in Person
Ms Nancy Tikoisuva for the Respondent
Date of Hearing: 4 April 2008

RULING

1. Waisea Kaloumaira, you were charged and convicted in the Magistrates Court at Suva on one count of Larceny, contrary to sections 259 and 262(2) of the Penal Code Cap 17. The particulars of the offence are that you on the 28th day of January 2006 at Suva in the Central Division stole $300.00 cash the property of Shell Service Station at Raiwaqa.
   
2. On 28 December 2007 before the learned Chief Magistrate you change your plea and pleaded guilty. You were sentenced to 12 months imprisonment to be consecutive to your existing term of imprisonment on 17 January 2008.
   

Background Facts

3. The relevant parts of the record in the Magistrate Court are as follows:
   

‘Before Ms Aruna Prasad, Resident Magistrate

4 June 2007

For Prosecution: PC Setareki

Accused: Present

Charge Read, explained and Understood

Plea: Not Guilty

Before Ms N. Matanitobua, Chief Magistrate
28 December 2007

For Prosecution – PC Setareki

Accused - Present on Bench Warrant

Accused: I was serving prisoner for 9 months since November 2006 – April 2007

Prosecution: Full Disclosures served

Accused: I wish to change my plea. Not forced or influenced by anyone.

Court: Charge Read, explained to Accused and Understood

Plea: I admit the offence

Facts: Refer to Summary of Facts read in Court and explained to the accused and understood – tendered as exhibit 1. No recoveries.

Court: Adjourned to 11/1/08 for Mitigation and prosecution to furnish Court with updated PC of accused. Production Order extended.

11 January 2008

For Prosecution: PC Setareki

Accused: Present

Prosecution: Hands in Accused updated PC

Mitigation: Written Submission tendered by accused

Serving and would be discharged on EMP otherwise discharged in May 2008.

Court: 17/1/08 for sentence. Production Order extended.’

4. In addition to the above, exhibit 1- the summary of facts is critical in showing that you admitted taking the money. In your letter setting out your mitigation you admitted the offence you were charged with in these terms:
   

‘The manager was not present and thus I told the new bowser attendant to give some money and to inform the Manager the amount of money and my name. The bowser attendant did not give me the money so thereby I took $300 from the tilt and went home..’

..I blame myself from my unnecessary conduct and wrong doings. Because I allow my negative attitude to control over me. And at this stage I indeed regret for taking the $300 from inside the till. And I am remorseful for all the mental and emotional suffering that I have inflicted upon the crime victims..’

5. The above evidence and facts were before the court when your plea was taken. You now claim that your guilty plea was equivocal.
   

Appeal grounds

6. On 22 January 2008 your Petition of Appeal was presented as ‘ Sentence Appeal on Cr Case No: 52/07. Your grounds of appeal then were:
   
   1. Learned magistrate erred in her decision making for sentencing me without the vital ingredients of larceny as:-
      
      1. The $300.00 cash was given to be by the Bowser Attendant and if the court had viewed the security camera;
         
      2. My guilty plea was equivocal as I was automotive to plead guilty because I was granted for an early release by prison dept on the basis of EMP which I pleased guilty
         
         2. It is further submitted that I was pre-judged because I was not even asked if I required legal representation;
            
         3. It was wrong in principle for the learned Magistrate to impose the 12 months sentence because the charge of larceny was defective.
            
7. When this matter came for hearing on 28 March 2008, you asked for an adjournment to allow you submit appeal grounds against conviction. You had not sought leave of the court to amend your grounds of appeal, I allowed it only because in fairness to you, the grounds of appeal you had submitted within the prescribed period under section 314(3) of the Criminal Procedure Code Cap 21 had indirectly claimed that your guilty was equivocal.
   
8. Against your conviction, you have submitted the following grounds of appeal:
   
   1. That your guilty was equivocal having been given by you in circumstances that does not prove the charge you faced;
      
   2. The money was given to you by the bowser attendant.
      
9. On the 28 March 2008 when this matter was called and you had indicated that you wish to appeal against conviction also, I drew your specific attention to section 309(1) of the Criminal Procedure Code Cap 21, which prohibits appeal against conviction in the Magistrates Court arising from a guilty plea, except where the appropriateness of the guilty plea is the alleged ground.
   
10. I also indicated to you that this court will only review the appropriateness of the guilty plea based on circumstances as revealed from the Court Record and relevant admissible evidence: Kuruka Bogiwalu & Ors v The State [1998] FJCA 16. The relevant part of the court record is outline in paragraph 3 above.
    

Appeal Determination

11. The appeal against conviction has no merit and is dismissed. In setting out the background facts in full, the intention was to show that in all the relevant circumstances attending your guilty plea in the Magistrates Court, it was indeed an unequivocal plea of guilty.
    
12. The charge was explained to you. You understood it. When the summary facts were outlined to you, you admitted it. All this you confirmed in your mitigating letter wherein you also admitted committing the offence by taking the money from the till of the Shell Service Station at Raiwaqa, when the bowser attendant refused to give you it to you.
    
13. The facts clearly show that you took the $300 without any right to do so. You attempt to make it look like a loan is exposed to be untrue when in your mitigating letter you admitted that the bowser refuse to give you any money and went ahead and took it anyway, for which you were later remorseful.
    
14. Your affidavit evidence that you filed in court on 28 March 2008 raises nothing new that was not already before the court during your trial. I therefore find that your appeal against conviction has not merit and is dismissed.
    

Sentence Appeal

15. You also appeal against the sentence that was passed by the Learned Chief Magistrate in the court below. In the Magistrates Court you were sentence to 12 months imprisonment consecutive to the term you were presently serving i.e. 9 months imprisonment for larceny with effect from 7 November 2007.
    
16. You simply stated in your letter of appeal dated 21 January 2007 ‘that it was wrong in principle for the learned Magistrate to impose the 12 months sentence because the charge of larceny was defective’. This ground was not developed during the appeal hearing. However, in the hearing of the appeal, you did say that you were expecting a non custodial sentence.
    
17. As I advised during the appeal the liable punishment for simple larceny where there has been a previous conviction is 10 years imprisonment: section 262(2) Penal Code cap 17. The High Court have set the tariff for simple larceny in the range 6 months to 12 months imprisonment: see Manasa Lesuma v The State [2004] FJHC 490; Iowane Wainiqolo v The State [1999]FJHC 15 and Naiteqe Vulici v The State [1996] FJHC 18.
    
18. The learned Chief Magistrate gave proper consideration to the relevant mitigation and aggravating factors. She took into consideration your change of plea, which caused her reduce the sentence from 2 years to 12 months imprisonment. The sentence is proper and within the tariff.
    
19. There were no special circumstances that would have justified the suspension of your sentence of imprisonment. Your expectation in this regard was unrealistic to say the least given your previous convictions.
    
20. The one issue I raised during your sentence appeal hearing and specifically asked you for further make submission on, was the order by the learned Magistrate that the 12 months be serve consecutive to your present term of imprisonment. I adjourned for week to allow you to make that submission to court by 9 April 2008. You did not avail this opportunity.
    
21. Under section 28(4) of the Penal Code Cap 17 a sentence of imprisonment on any subsequent offence, passed on a person who is already serving a term of imprisonment, will be executed after the expiration of the prior sentence, unless the court orders that it be served concurrently to that prior term of imprisonment.
    
22. In this case there was no order for the 12 months to be concurrent, therefore it will be consecutive. In Bavoro v The State [2006] FJHC 7(HAA 041/2006), Justice Shameem held that a sentence is consecutive if not specified under section 28(4) of the Penal Code cap 17. I agree.
    
23. Section 28(4) of the Penal Code Cap 17 clearly states that any sentence of imprisonment passed on a person by a court, before the expiration of a prior sentence of imprisonment for the same person, shall be served consecutive to that sentence unless the court directs that it be concurrent. The Learned Chief Magistrate did not err in law in passing sentence in this case.
    
24. In this case the totality of the sentence needs to be reviewed. Even on this evaluation the sentence in this instance given the all the relevant factors to be considered, cannot be said to be harsh nor is it excessive nor is it unprincipled.
    
25. I therefore find that the appeal against sentence has no merit and is dismissed.
    
26. In conclusion, the court makes the following order: the appeal is dismissed because it has no merit. The conviction and sentence in the Magistrates Court is upheld.
    

Isikeli Mataitoga
JUDGE

At Suva
11 April 2008.