Nause v State [2012] FJHC 1227; HAA013.2012 (25 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 013 /2012

BETWEEN:

IOKIMI NAUSE
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 23rd of March 2012 in the Magistrates Court at Savusavu the appellant entered a plea of guilty to one count of theft of a bag of dried Yaqona valued at $800. He was convicted and sentenced on the same day to a term of 16 months' imprisonment with a minimum term to be served of 10 months.
   
2. Having been granted leave to appeal out of time, he now appeals that sentence on the grounds that the sentence was harsh and excessive and that the Magistrate failed to consider the effect on his family.
   
3. The facts were that on the 22nd March 2012, the victim had booked a room at Savusavu Holiday House and had gone drinking with friends. When he returned at about 3 am he found that his bag of yaqona worth $800 was missing. Police enquiries identified the appellant as a suspect and he admitted the offence under caution. The bag was recovered but some of the yaqona was missing.
   
4. The appellant is 27 years old, married with a young baby. He is a farmer earning very little sums of money. He expressed remorse both below and before this Court. He has twenty two previous convictions 17 of which are for larceny/theft.
   
5. The maximum penalty for theft is ten years' imprisonment and the accepted tariff is between one to four years (Cavuilagi HAA 31 of 2004). The higher end of this scale is reserved for thefts involving serious breach of trust.
   
6. The learned Magistrate took a starting point of two years imprisonment and added eight months to the sentence for "aggravating factors" which he had earlier stated to be the portion of yaqona missing from the bag. He deducted 8 months for the plea of guilty and a further 8 months for "mitigating factors and personal circumstances", arriving at a total sentence of 16 months' imprisonment.
   
7. While this Court does not wholly endorse the way in which the Magistrate arrived at the sentence, it is a proper and appropriate punishment for theft from someone else's hotel room by an accused with a long period of previous theft offences.
   
8. It should be noted that an accused should never be sentenced for, nor his sentence upheld for, a long list of similar previous convictions. However such previous convictions would prevent an accused or an appellant claiming credit for personal circumstances.
   
9. Pathetic and impoverished family circumstances can never, save in exceptional circumstances, be claimed as valid mitigating circumstances. When an accused is committing crime or putting himself in circumstances which would bring suspicion on himself, then he clearly needs to consider at that stage the ramifications of his actions and the effect such actions would have on his family.
   
10. The appeal is dismissed.
    

Paul K. Madigan
JUDGE

At Labasa
25th July 2012