Tikoitoga v State [2011] FJHC 444; HAA024.2011 (16 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 024 OF 2011

BETWEEN:

TOMASI CAMA TIKOITOGA
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms K. Semisi for the State

Date of Hearing: 10 August 2011
Date of Judgment: 16 August 2011

JUDGMENT

[1] On the 1st July 2011 in the Lautoka Magistrates Court, this appellant was sentenced along with another to a term of 12 months' imprisonment for one offence of office breaking and larceny contrary to section 300(a) of the Penal Code, Cap. 17. The charge read as follows:

Statement of Offence

OFFICE BREAKING ENTERING AND LARCENY: Contrary to section 300(a) of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI CAMA TIKOITOGA and SAKIUSA TURAGA NAULUMATUA with others between the 31st day of July and the 3rd day of August 2009 at Nadi in the Western Division broke and entered into the office of Andrew's Primary School and stole therein cash of $160.00 and Ryobi brush cutter valued at $500.00 all to the total value of $660.00 the property of Andrew's Primary School.

The appellant had pleaded guilty to the offence at a very early opportunity.

[2] The accused now seeks to appeal that sentence on the grounds that:

(i) Erroneous factors were found to be aggravating.

(ii) He was prejudiced by the delay in sentencing after his plea.

[3] The facts were that the appellant and one other broke into the offices of St. Andrew Primary School stealing a brush cutter, cash and amplifiers.

[4] Office breaking and entering carries a maximum sentence of 14 years' imprisonment and the accepted tariff of 2 to 3 years was laid down by Shameem J. in Sitiveni Cikamatana – HAA 81/06. The Magistrate took a starting point of 18 months' imprisonment. For aggravation, which the Magistrate said was:

(i) Breaking into an educational institute;

(ii) Causing loss to the institution and a lack of respect to public property;

the Magistrate added 2 months to the sentence, but he deducted eight months for the guilty plea and the remorse of the appellant; the resultant sentence being a term of twelve months.

[5] Confusion over concurrency or consecutiveness with a sentence being served arose because the sentence was not delivered on the 30th June, 2011 as planned. The appellant, having already served a prior sentence and having been released did not appear for sentence. He was brought before the Court on 1st July 2011 when he was sentenced. The Magistrate had already decided that this new sentence was to be served concurrently with his existing sentence, but realizing that this appellant was not serving, he deleted reference to concurrency from the sentence.

[6] The appellant claims that delay in sentence after plea deprived him of the opportunity to have part of this sentence served concurrently with the prior sentence.

Analysis

[7] The sentence arrived at by the Magistrate is quite appropriate to the crime committed and allows for mitigation and the plea of guilty. Some doubt must be raised however about whether the aggravating features claimed by the Magistrate are valid. With any office breaking and larceny, loss and lack of respect to property will pertain and they can hardly then be said to be aggravating features, being inherent in the offence. The fact that the victim was a school, probably with limited resources, is however a valid aggravating feature and the added penalty of two months imprisonment is an appropriate adjustment.

[8] An aggravating feature missed by the Magistrate was that the $160 stolen was bus money for children affected by the Nadi floods around that time. That point would more than compensate for the inappropriate aggravation cited.

[9] There is force in the appellant's submission, that had he been sentenced earlier he would have had the benefit of this sentence being served partly with the sentence he was serving up and until the 29th June. He entered his plea on 20th October 2009 and was sentenced on 1st July 2011. A two year delay on sentence is totally unacceptable.

[10] Between the 20th October 2009 and 1st July 2011, the case was called for mention 17 times until 14 April 2011 when the plea was taken again. Such a state of affairs is most unsatisfactory. Much of the delay was caused by the non-appearance of this appellant's co-accused or by his not being produced when on remand. Of the 17 times the case was called this appellant was present on eleven occasions and no mention of sentence was made. This is inexcusable. Once an accused has pleaded guilty, he has a fundamental right to have his case determined by the handing down of a lawful sentence within a reasonable time. Sentence was not passed on this accused in a reasonable time and he was severely prejudiced by that, the eventual sentence ruling that this sentence be served concurrently.

[11] In recognition of this prejudice occasioned by the seeming lassitude of the Court at Nadi, I deduct 6 months from the appellant's sentence, meaning he will serve a total term of six months' imprisonment.

Paul K. Madigan
JUDGE

At Lautoka
16 August 2011