Turuturuvesi v State [2011] FJHC 384; HAA006.2011 (13 July 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

High Court Criminal Appeal No: HAA006 OF 2011

BETWEEN:

TOMASI TURUTURUVESI
Appellant

AND:

THE STATE
Respondent

Counsel: For Appellant - In Person
For Respondent/State - Mr. Katia. P

Date of Hearing: 22/06/2011
Date of Judgment: 13/07/2011 at 9.30am

JUDGMENT

1. The appellant was charged and convicted on his own plea of guilty in the Magistrate's Court at Suva on one Count of Theft contrary to section 291 of the Crimes Decree No. 44 of 2009.
   
2. The appellant was sentenced to 16 months imprisonment.
   
3. He now appeals against the sentence on the following grounds:
   
   1. That the sentence is manifestly harsh and excessive taking

into account that the mobile phone was later recovered and returned to the owner by Police during the investigation;

2. That the learned sentencing court erred in law and in fact

when he based his sentence particularly at page 4, paragraph 13 of the sentence over the previous convictions;

3. That there was no proper consideration given by the court

over mitigation. Taking into account that the Appellant is married and have a 2 year old daughter to look after;

4. That the Appellant feels unfairly treated by the court on

account of the disparity of sentence of Kunal Singh, Criminal Case No. 1246/10, Mr. Singh has just been recently sentenced by the Suva Magistrates Court to 6 months imprisonment for the count of theft contrary to section 291 of the Crimes Decree that he has similar previous convictions but received a lighter sentence.

5. That even though the Appellant has previous convictions,

those convictions were made under the old law but under the new law the Appellant is considered a first offender.

4. The facts of the case as filed in the summary of facts in the Magistrate's Court were:
   

"On 01st day of December 2010 about 1730hrs at Nabua By-Pass TOMASI TURUTURUVESI (Acc) 38yrs unemployed of Navatuyaba village, Toga, Rewa stole a Samsung mobile phone valued at $199.00 from one ANAY SUMEHWAR YADAY (PW-1), 56yrs businessman of 12 Vatoa Street, Samabula.

(PW-1) was on his way towards Vatoa Street, Samabula to return home from Nausori.

(PW-1) was waiting for the light at Nabua by-pass, when suddenly (Acc) opened the passenger door and got on the car and sat in the front passenger seat.

(Acc) tried to sell something to (PW-1) but (PW-1) refused to buy and ordered (Acc) to get off the car.

As (Acc) got off the car he took (PW-1)'s mobile phone, and walked away.

(PW-1) reported the matter to Police and left out with Lakobo Vaisewa, (PW-2) 39 yrs, Police Officer Nabua Police Station and arrested (Acc) at Nabua Bus stop at old State Theatre Building, after (Acc) was identified by (PW-1).

(Acc) was brought to Nabua Police Station, interviewed under cautioned and also charged for the offence of Theft contrary to section 291 of Crimes Decree No. 44 of 2009."

5. Offence of theft contrary to section 291 of the Crimes Decree carries a term of 10 years imprisonment.
   
6. Tariff for larceny is 18 months to 3 years. (Tikoitoga v State (2008) FJHC 44, HAM 088.2007, 18th March 2008. The learned Magistrate selected 18 months imprisonment term as his starting point. It is in the lower end of tariff.
   
7. The learned Magistrate has considered the aggravating factors and increased the sentence by 12 months. Then he had considered his early guilty plea and reduced the sentence by 10 months and further reduced by 3 months for the mitigating factors. Further one month period was reduced for the period in remand. Although the learned Magistrate in his sentencing judgment has not specifically mentioned about the recovery of the mobile phone, he has selected the starting point as well as the final sentence in the lower end of the tariff. Therefore the 1st ground of appeal, that the sentence is manifestly harsh and excessive is without merit.
   
8. When considering the custodial sentence on the accused the learned Magistrate has stated in the paragraph 13 of his judgment that the accused was not a first offender and that he did not find any compelling reasons to suspend the sentence.
   
9. The learned Magistrate has not considered the 44 previous convictions as an aggravating factor when awarding the term. However he has not considered a discount on previous good behavior as the appellant had 44 previous convictions. The learned Magistrate has considered this factor when deciding not to suspend the sentence, which he was entitle to do so.
   
10. In terms of section 4 (2) (i) of the Sentencing and Penalties Decree 2009, when sentencing the offenders the court must have regard to the offenders previous character as well. In determining the previous character, the number, seriousness, date, relevance, the nature of any previous findings of guilt or conviction recorded against the offender may be considered by the court in terms of Section 5 (a) of the Sentencing and Penalties Decree 2009.
    
11. Therefore the learned Magistrate was correct when he said that it warranted a constructive judicial intervention with deterrent sentence and that he did not find any compelling reasons to suspend the sentence.
    
12. Hence grounds of appeal II and V should necessarily fail.
    
13. The learned Magistrate has considered all the mitigating factors mentioned on behalf of the accused in the Magistrate's Court and have given sufficient discount for early guilty plea and also considered the period in remand.
    
14. Therefore ground no. III is without merit.
    
15. When sentencing, the Court has to consider different circumstances of each case. Each case must be considered on its own merits. In case of Prasad v The State [1994] FJHC 132; HAA 0032j.94s (30 September 1994) the court considered what was said in the case of Tevita Jone Rami v Raginam [supreme Court, 1963] Macduff C.J.) F.L.C p.69.
    

"One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment."

The Court of Appeal, in considering an application for reduction of sentence, must be reasonably satisfied that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances calling for its revision. Little help is gained by considering other sentences in respect of the same type of offence, for the whole of the surrounding circumstances and the situation of the offender, and others have to be taken into account; and these factors vary infinitely."

16. The learned Magistrate has carefully considered the circumstances of the instant case when sentencing the appellant and therefore ground no. IV should fail.
    
17. In the above premise the appeal against the sentence has no merit and is dismissed.
    

Priyantha Fernando
JUDGE

At Suva
13th July 2011.