Jahid v State [2011] FJHC 262; HAA05.2011 (12 May 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA05 of 2011

BETWEEN:

ABDUL JAHID
Appellant

AND:

THE STATE

Respondent

Hearing: 20 April 2011
Judgment: 12 May 2011

Counsel: Mr. K. Padayachi for Appellant
Mr. T. Ravuniwa for State

JUDGMENT

[1] On 23 November 2010, the appellant was sentenced in the Magistrates' Court at Labasa on his own guilty pleas to the following offences:

Case No. 790/10 - Theft - 12 months imprisonment

Case No. 791/10 - Theft - 12 months imprisonment

Case No. 792/10 - Burglary - 12 months imprisonment

Theft - 12 months imprisonment

[2] The sentence for burglary was made consecutive to the concurrent sentences for theft. The total sentence was 24 months imprisonment with a non-parole period of 18 months to serve.

[3] The appeal is against sentence on the grounds that:

1. the learned Magistrate failed to consider giving a suspended sentence as the appellant was a first offender and that he cooperated with the police and all items were recovered.

2. the learned Magistrate failed to give sufficient credit to early guilty plea.

3. the sentence is harsh and excessive.

[4] The facts in Case No. 790/10 were that on 6 November 2010 the complainant had parked his truck at Rara Avenue beside Subrail Park. When the appellant noticed the truck was unattended, he unscrewed two batteries from the truck's terminals and drove away with them in his own vehicle. He sold the batteries for $70.00. The total value of the batteries were $610.00. One battery was recovered from the person to whom the batteries were sold.

[5] The facts in Case No. 791/10 were that the appellant uninstalled an amplifier that was fixed to the complainant's vehicle and fixed it to his own private vehicle. The value of the amplifier was $600.00. Under caution interview, the appellant admitted the theft. The amplifier was recovered.

[6] The facts in Case No. 792/10 were that the appellant entered the home of the complainant while he was attending to a prayer session at the mosque and stole a brush cutter valued at $800.00. The brush cutter was pawned at a shop in town. The appellant admitted the theft under caution. The brush cutter was recovered from the pawn shop.

Recovery of stolen properties

[7] As a matter of principle, an offender deserves some reduction in sentence when the stolen properties are recovered as a result of cooperation with the police.

[8] In his sentencing remarks, the learned Magistrate acknowledged the fact that certain stolen items had been recovered as a result of information provided by the appellant to the police. However, the learned Magistrate did not treat the recovery as a separate mitigating factor. Instead the learned Magistrate considered the appellant's cooperation with the police, that is, his confession and information leading to the recovery of some stolen items as a distinct mitigating factor to make a downward adjustment to the sentence.

[9] I find no error in the approach of the learned Magistrate. Not all stolen items were recovered. In Case No. 790/10, only one battery was recovered. The buyer of the batteries lost $70.00 and he was exposed to a criminal charge for receiving stolen property by the conduct of the appellant.

[10] Similarly, the pawn shop owner was exposed to a criminal charge and he also lost the money he had paid to the appellant for the brush cutter.

[11] In these circumstances, the recovery of stolen items could not operate as a distinct mitigating factor to reduce the sentence.

[12] The appellant further submits that the learned Magistrate failed to consider suspending the sentence on the ground that he was a first time offender. While I accept that the learned Magistrate did not direct his mind on suspending the sentence, the error has not caused any miscarriage of justice.

[13] The fact that an offender has previous good character does not lead to an automatic suspension of sentence. There has to be special circumstances present to suspend a sentence.

[14] In mitigation the appellant told the learned Magistrate that he was 22 years old, single and a carpenter by profession. Although 22 years of age is considered young, the appellant stole on three separate occasions from different victims. The offences are not isolated incidents to justify suspension of the sentence. The offences were deliberate disregard of the law by a young man of sufficient maturity to know the difference between right and wrong. He cannot be less culpable just because of his age. In these circumstances, the learned Magistrate quite properly applied the principle of special and general deterrence to impose an immediate custodial sentence.

Guilty pleas

[15] It is clear from the sentencing remarks that the learned Magistrate treated the appellant's guilty pleas to have been made at the first reasonable opportunity. For each offence, the learned Magistrate made a reduction of six months from the starting point of eighteen months imprisonment to reflect the early guilty pleas. Six months was equivalent to one third reduction, which was appropriate in this case. No error has been shown under this ground of appeal.

Severity of Sentence

[16] The maximum sentence for theft is 10 years imprisonment, while the maximum for burglary is 13 years imprisonment. The appellant received a total sentence of 2 years imprisonment for three thefts and one burglary. The total sentence of 2 years imprisonment is within the tariff for these types of offences and reflects the total criminality involved. The ground that the sentence is harsh and excessive has no merit.

Result

[17] None of the grounds of appeal has been made out.

[18] The appeal against sentence is dismissed.

Daniel Goundar
JUDGE

At Labasa
12 May 2011

Solicitors:
Messrs. Maqbool & Co. for Appellant
Office of the Director of Public Prosecutions for Respondent