Tui v State [2011] FJHC 416; CRC012.2011 (29 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

APPELLATE JURISDICTION

CRIMINAL CASE NO: 012/2011

BETWEEN:

NASONI TUI
APPELLANT

AND;

STATE
RESPONDENT

JUDGMENT

1. The accused-appellant (the appellant) in this case was convicted of the offence of larceny punishable under Section 274 of Penal Code by the learned Magistrate, Lautoka. The conviction was entered on the plea of guilty of the appellant.
   
2. Facts admitted revealed that the appellant, whilst serving as a Dispatching Supervisor at Fiji Hardwood Limited, had stolen paints, the value of which, was $ 582.00.
   
3. The learned Magistrate in a well-reasoned out sentencing ruling imposed a term of 18 months imprisonment on 23 February 2011. The appellant appeals alleging that the sentence was harsh and excessive and that the learned Magistrate had not properly discounted for his early plea of guilty.
   
4. I have considered the grounds of appeal of the appellant in light of the contents of the ruling on the sentence. The learned Magistrate has properly applied the tariff of sentence for the offence of 'Larceny by Servant' punishable under Section 274 of the Penal Code by picking-up a term of 18 months as the starting point having relied on a series of judicial precedents.
   
5. The learned Magistrate has properly given a discount of four months to the early guilty plea and another four months for the mitigating factors after reaching a point of 26 months upon adding eight months for aggravating factors.
   
6. Learned Magistrate has, upon a careful scrutiny of aggravating and mitigating factors, given due weight to them as appearing at page 2 of his ruling. Personal circumstances of the appellant, too, have been considered. The learned Magistrate also has correctly borne in mind the objects and purposes of sentencing as prescribed by Section 4 of the Sentencing and Penalties Decree No 42 of 2009 in imposing the 18 month period of imprisonment.
   
7. I, therefore, do not see any merit in the grounds that the sentence was harsh and excessive insofar as its length is concerned.
   
8. The learned Magistrate has also duly exercised his discretion with regard to the aspect of suspending the operation of the sentence. The reason relied upon by the learned Magistrate in imposing an operative sentence was that the appellant has had a previous conviction for an offence of 'Larceny' for which the appellant was sentenced to $ 75.00 [only] on 14 February 2006. The learned Magistrate, however, is not correct in his conclusion that ' the appellant [ had been] given an opportunity to reform [himself] and be a law-abiding citizen...' thus alluding to the fact that he was sentenced only to a fine whereas the appellant had in fact been sentenced to a term of 75 days of imprisonment as well.
   
9. This would show that the appellant, despite his prison experience, has not shunned his indulgence in committing the offence of larceny. This justifies the learned Magistrate's decision not to suspend the term of sentence although the previous imprisonment was not adverted to.
   
10. In the circumstances, I do not see a reason to interfere with the sentence of the learned Magistrate. The sentence of 18 months operative term is affirmed. The appeal is dismissed.
    

Priyantha Nawana
Judge

High Court
Lautoka
29 July 2011