Liuta v State [2012] FJHC 1226; HAA011.2012 (25 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 011 /2012

BETWEEN:

LOROSIO YAYA LIUTA
Appellant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Appellant in Person
Ms M. Fong for the State

Date of Hearing: 17th July 2012

Date of Judgment: 25th July 2012

JUDGMENT

1. On the 4th day of June 2012 in the Magistrates' Court at Savusavu the appellant entered a plea of guilty to one charge of theft of 24 pearls valued at $6,100 and he was sentenced that day to 24 months' imprisonment with a minimum term of eighteen months before parole.
   
2. The facts he admitted were that he had been working for Fiji Pearl Company for 3 years, based in the cleaning section. In the process of cleaning 1,200 pearls per day he stole 24 of them. He admitted the offence on enquiry by the Police and said he had sold them to a businesswoman in Nasekawa.
   
3. In mitigation the appellant had told the Magistrate that he was 37 years old, he was married with 3 children and he asked for forgiveness. His salary was poor and he needed the money for church and village commitments.
   
4. The maximum penalty for theft is ten years' imprisonment. The tariff for the offence is now held to be a sentence of between 1 to 4 years (Cavuilagi 2004 FJHC 92 HAA 31 of 2004).
   
5. In casting his sentence the learned Magistrate took a high starting point of three years. He added twelve months for aggravating features before deducting twelve months for his mitigating features. He then deducted another 12 months for the plea of guilty arriving at a total sentence of 2 years.
   
6. The appellant submits that the sentence is harsh and excessive and did not fully take into account his personal circumstances.
   
7. The Magistrate was correct in identifying the tariff for theft and in taking the starting point he did considering the seriousness of the breach of trust and the value of the pearls. He correctly allowed a one third remission for the plea of guilty.
   
8. This court is troubled however by the addition of twelve months to the sentence for "aggravating circumstances" which are identified as breach of trust and recovery of only three of the pearls.
   
9. To take a high starting point because of the seriousness of the case and then to add time for aggravating features is in effect punishing the accused twice for aggravating circumstances. It is unfair.
   
10. Pursuant to Section 256(2)(a) of the Criminal Procedure Decree, I now proceed to vary the sentence passed below. I take the same starting point of three years, but would add nothing further for aggravating features. The appellant is not a first offender and his family circumstances are not persuasive mitigating factors. I deduct twelve months for his plea of guilty, arriving at the same total as the Magistrate being two years' imprisonment.
    
11. The appeal succeeds to the extent that both the aggravating and mitigating components are removed, however the end result remains the same as that arrived at by the learned Magistrate.
    
12. The appellant will serve a term of two years imprisonment with a minimum term of eighteen months before being eligible for parole.
    

Paul K. Madigan
JUDGE

At Labasa
25th July, 2012