Tuni v State [2011] FJHC 80; HAA060.2010 (21 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAA 060 OF 2010

BETWEEN:

IMANUELI TUNI
APPELLANT

AND:

STATE
RESPONDENT

Counsel: For Appellant - In Person
For Respondent/State - Mr. Singh, J

Date of Hearing: 08/02/2011

Date of Judgment: 21/02/2011

JUDGMENT

The Appellant was charged with one count of Larceny in the Suva Magistrates Court Criminal Case No.: 542/2009. He was convicted after trial and was sentenced to 11 months imprisonment.

He was ordered to serve the said 11 months imprisonment as an extra mural prisoner, whereby he was ordered to serve in prison only on weekends and to serve the weekdays from home.

Appellant appeals against the said conviction and sentence.
Appellant after filing several documents time to time on grounds of appeal finally filed his grounds of appeal on 13/1/2011.

Grounds of appeal against the conviction and sentence which was filed on 13/1/2011 were as follows:

Conviction

1. Conviction should be put aside on the ground, the evidence of PW1 shows he saw a real mobile phone and that was the reason I arranged for the sale of it and got five dollars for my cut. That explanation is to account my possession.
   
2. Unreasonable delay in having a trial.
   
3. The Magistrate was not fair in sending me to prison on remand for the bench warrant. I took myself to the police station the next morning when I took the wrong date. The Magistrate again sent me to prison after being granted bail by her brother Magistrate.
   
4. Looking at the court record, prosecution witnesses were not present when the trial set on several occasions and at the final stage on 28/07/09 the hearing was vacated on the application of the Prosecution. This was granted by the court. (Please see page 7 of the court record).
   
5. The trial was proceeded, overlooking the time limit of the offence and that delay was unreasonable.
   

Sentence

6. I feel that I should have been treated as a first offender because of the 16 years I had been of good behavior. The Court had not taken this into account because of the previous conviction in 2006 which was quashed on appeal to the High Court. Copy of the record of this conviction or appeal is enclosed.
   

My Lord I had suffered enough for this offence, one is the delay in having a trial and the worst is that my wife had left me with our children on the first weekend when the sentence was passed by the Magistrate. I plea for your Lordship to grant me a suspended sentence so I could look for my wife who does not want me to go to prison. I was trying to convince her during my stay in prison but it has been proved unsuccessful.

I humbly entreat your Lordship to grant me a suspended sentence instead of my current sentence which does not entitle me to a remission. I feel it is too harsh. My Lord, Prison does not do me any good. That was the reason I left City-life and settled in the village soon after my release from Prison in 1994.

Ground No.1:

PW1 complainant gave evidence in Magistrates Court as to how the Appellant with the other person tricked him, and obtained the money from the Complainant. His evidence was that the Appellant took him to the other person, and he was shown a mobile phone. They took the money and gave the wrapped brown envelope, which no sooner he realized that what was wrapped was not a mobile phone, but a bar of soap. He then ran after the Appellant to get money back without success.

The offence of Larceny is defined in Section 271 of the Penal Code for which the Appellant was charged.

Any person who steals any chattel, money or valuable security from the person of another is guilty of a felony, and is liable to imprisonment for fourteen years.

Theft is defined in Section 259 of the Penal Code.

259(1) a person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) By any trick;

(ii) By intimidation;

(iii) Under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or

(iv) By finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.

(b) The expression "carries away" includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached.

(c) The expression "owner" includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.

In this case the money was taken by the Appellant by trick, giving the
Complainant a bar of soap wrapped in an envelope, making him to believe that
it was the mobile phone which was shown to the Complainant. Therefore, all elements of Larceny were proved by the Prosecution against the Appellant.

In cross-examination of the Complainant, he testified as to how he was tricked by the Appellant and the other person.

Appellant's Caution Interview Statement was tendered in evidence without objection. In his statement to Police he admitted being present at the scene. He had said, that he only saw that the Complainant giving the money to Peni and then Peni in return, gave him a brown paper in colour wrapped inside a bar soap. However, he denied planning before, with Peni. Appellant's position was that Peni gave him $5.00 for arranging the customer, and went away.

In his evidence in court, Complainant said that he ran after the Appellant to get the money back, but couldn't get him.

The learned Magistrate in her judgment, accepted the evidence of PW1 (Complainant) as a credible witness. The learned Magistrate was the best person to judge the credibility of the witness, as she was the person who saw the witness giving evidence and observed the demeanor of the witness.

This court would be slow to interfere with the said opinion of the learned Magistrate on her observations, unless it could be shown clearly that the witness is unworthy of credit.

The learned Magistrate is entitled to draw proper inferences from the circumstantial evidence placed before her. For example, as to why the Appellant ran away from the scene, and as to why he accepted the money.

Therefore the learned Magistrate is entitle to come to the conclusion that the Appellant acted in joint enterprise with the other person to trick the Complainant to steal his money.

Hence the Ground of Appeal No.1 has no merit.

Appellant has stated that he didn't get a fair trial due to unreasonable delay. Appellant has failed to submit to court, that how the delay affected his rights to a fair trial. He, in his grounds of appeal has submitted that on 28/7/09 the hearing was vacated on the application of the prosecution. When perusing the court record it is noted that 28/7/09 was the date where charges were read to the accused but not a hearing date. However, on 1/10/2009 Prosecution had not been ready for trial. On that day Counsel for Accused too had made an application for adjournment to enable him to write to Director Public Prosecutions to withdraw the case.

On the next date on 8/12/2009, Prosecution was not ready for want of witnesses. Hence the hearing date was vacated to 8/3/2010. On 8/3/2010 when all witnesses for Prosecution were present, Appellant was absent and bench warrant was issued.

On the next date on 10/3/2010, the learned Magistrate has remanded the accused giving reasons for the said remand order. As the accused absconded on the previous day, the learned Magistrate was not in error when she cancelled his bail and remanded the accused.

The Appellant has failed to satisfy court that the Appellant was prejudiced in the prosecution of, or conduct of his defence, by delay on the part of the prosecution or court which is unjustifiable.

Therefore, Grounds of Appeal No.: 2-6 should necessarily fail.

Sentence Appeal

On 15/9/2010 the Appellant was sentenced to 11 months imprisonment on the following conditions.

In sentencing judgment the learned Magistrate ordered as follows:

Ordered the Appellant to serve from Monday to Friday as an extra mural prisoner from his home in order for him to work and earn a living to support his family.

To live at Nausori and to report to Nausori Police Station every Friday by 5.30pm to be taken to prison by 6.00pm.

Every Sunday at 6.00pm to be released from Prison to serve the sentence extra murally from home.

The Appellant submitted at the hearing that he be given a suspended sentence.

The maximum penalty for the offence of Larceny from Person is 14 years imprisonment.

Tariff for the offence of Larceny is 2-3 years imprisonment.
Deo Chand v State [2007] FJHC 65; HAA 30.2007 (11 October 2007).

In case of Talau v The State [2005] FJHC 559; HAA 0078J.2005S (5 August 2005) where accused was charged for pick pocketing of 4 dollars cash was sentenced to 12 months imprisonment (not suspended).

In case of Tanidrala v The State [2001] FJHC 63; HAA 46j.2001S (29 August 2001) Justice Shameem said:

"I accepted the tariff for pick pocketing offences to be between 12 to 18 months imprisonment. In the circumstances a 12 month term for a person who has a history of dishonesty offences, is hardly excessive."

In this case the Appellant was sentenced to 11 months imprisonment which I consider to be lenient. Further considering the circumstances and mitigating factors the learned Magistrate has ordered, that the Appellant serves the term as an extra mural prisoner, for which she had the authority in terms of Section15 of the Sentencing and Penalties Decree 2009.

Hence the grounds of appeal against sentence are without merit.

In the above premise the Appeal is dismissed.

Priyantha Fernando
JUDGE

At Suva
21st February, 2011.