Mosi v State [2012] FJHC 1348; Criminal Apeal 138.2012 (1 October 2012)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Fiji

Dates of hearing : 3 September, 25 September 2012
Date of Judgment: 1 October 2012

1. On the 28th March 2012, the appellant was sentenced in the Magistrates' Court at Ba to consecutive terms of imprisonment totalling seven years and seven months for seven separate cases of burglary, larceny, theft, assaulting a police officer, resisting arrest and escaping from lawful custody.

2. The appellant appeals that sentence on the grounds that it is harsh and excessive and that he was not given sufficient credit for his plea of guilty.

3. The charges that the appellant faced and entered pleas of guilty to, were as follows:

(i) File 351/09	Burglary contrary to section 299(a) of the
Penal Code, Cap. 17.

Particulars	Sefanaia Mosi and 2 others between the 27th and 28th day of June 2009 at Wailailai, Ba in the Western Division, by night broke and entered the dwelling house of another namely Sada Siwan with intent to commit felony therein namely larceny.

Count 2	Larceny in a dwelling house of property to a value amounting to not less than ten dollars contrary to s.270 of the Penal Code, Cap. 17.

Particulars	Sefanaia Mosi and 2 others between the 27th and 28th day of June 2009 at Wailailai, Ba in the Western Division, stole in the dwelling house of Sada Siwan, maclodge brand chainsaw valued at $1,300, Kawasaki Brushcutter valued at $799, portable radio valued at $35.00, 10kg rice valued at $13 and lamb chops valued $37 all to the total value of $2,184.00 amounting to not less than $10, the property of the said Sada Siwan.

(ii) File 352/09

Count 1:	Burglary contrary to section 299(a) of the Penal Code, Cap. 17.

Particulars:	Sefanaia Mosi and 2 others between the 2nd and 3rd day of October 2009 at Wailailai, Ba in the Western Division by night broke and entered the dwelling house of another namely Kamal Krishna Swamy with intent to commit felony therein namely larceny.

Count 2:	Larceny in a dwelling house of property to a value amounting to not less then ten dollars, contrary to section 270 of the Penal Code, Cap. 17.

Particulars:	Sefanaia Mosi and 2 others, between the 2nd and 3rd October 2009 at Wailailai, Ba in the Western Division, stole in the dwelling house of Kamal Krishna Swamy, a HP laptop valued at $2,500, cash of $300, six cans of tuna valued at $6, one 750ml soya bean oil valued at $3.50, Nike soccer boots valued at $150, Adidas canvas shoes valued at $150.00, Nokia phone valued at $1,000 and 2 Adidas t-shirts all property to a value of not less than $10 being the property of the said Kamal Krishna Swamy.

(iii) CR 353/09:	Larceny contrary to s259 and 262 of the Penal Code, Cap. 17.
Particulars:	Sefanaia Mosi and 1 other on the 23rd day of August 2009 at Wailailai, Ba in the Western Division stole 2 drakes valued at $40 the property of Sada Siwan.

(iv) CR 354/09	Larceny contrary to s.259 and 262 of the Penal Code Cap 17.

Particulars:	Sefanaia Mosi between the 16th and 17th day of October 2009 at Wailailai Ba in the Western Division, stole two chickens valued at $30, the property of Suruj Mati.

(v) CR 15/2012	Assaulting Police Officer in the execution of his duty contrary to s.277(b) of the Crimes Decree No. 44 of 2009.

Particulars:	Sevanaia Mosi on the 9th day of January 2012 at Ba Police Station in the Western Division assaulted PC 2865 Kamini in the due execution of her duty.

Count 2:	Escaping from lawful custody contrary to section 196 of the Crimes Decree No. 44 of 2009.

Particulars:	Sevanaia Mosi on the 9th day of January 2012 at Ba Police Station in the Western Division being in the lawful custody of PC 3865 Kamini, escaped from such lawful custody.

Count 3:	Resisting arrest contrary to s.277(b) of the Crimes Decree 2009.

Particulars:	Sevanaia Mosi on the 9th day of January 2012 at Ba Town in the Western Division resisted PC 4810 Peni while effecting arrest in the due execution of his duty.

(vi) CR 16/2012	Burglary contrary to s.312(1) of the Crimes Decree No. 44 of 2009.

Particulars:	Sevanaia Mosi between the 25th day of December 2011 and the 26th day of December 2011 at Wailailai, Ba in the Western Division, entered into the dwelling house of Subashni Sangeeta Devi as a trespasser, with intent to commit theft.

Count 2:	Theft contrary to s.291(1)(2) of the Crimes Decree No. 44 of 2009.

Particulars:	Sevanaia Mosi between the 25th day of December 2022 and the 26th day of December 2011 at Wailailai, Ba in the Western Division stole cash FJ$1,500, US$200, 3 sari valued at $329.00, 1 gold bracelet valued at $500.00, one ring valued at $150.00, three pair of gold earring valued at $1,479.00, one mangal sutra valued at $1,000.00, two small sovereign valued at $800.00, one pair shoes valued at $45.00, one packet Givenchy angeandemon cream valued at $200.00, three bottles of perfume valued at $123.00, all to the total value of $6,726.00, the property of Subashni Sangeeta Devi.

(vii) CR 17/2012

Count 1:	Burglary contrary to s.312(1) of the Crimes Decree 2009.

Particulars:	Sevanaia Mosi on the 24th day of October 2011 at Khalsa College, Ba in the Western Division, entered the dwelling house of Salesh Singh as a trespasser with intent to commit theft.

Count 2:	Theft contrary to s.291(1) & (2) of Crimes Decree 2009.

Particulars:	Sevanaia Mosi on the 24th October 2011 at Khalsa College, Ba in the Western Division stole cash of $3.00, a radio valued at $228.00, flip flops valued at $5.00, snacks and food valued at $5.00 and a flash net valued at $35.00 all to the total value of $277.00 the property of Salesh Singh.

Count 3:	Theft contrary to section 291 of the Crimes Decree 2009.

Particulars:	Sevanaia Mosi on the 24th October, 2011 at Khalsa College, Ba in the Western Division, stole a laptop valued at $600 and movies CD valued at $35.00 all to the total value of $635.00 the property of Pratika Singh.

4. The individual facts were not remarkable but the sentences certainly were. For 351/09 he was sentenced to 14 months for the burglary and a concurrent term of 6 months for the larceny. For 352/09 he was sentenced to similar terms of 14 months and concurrent six months for the burglary and larceny, but these terms were ordered to run consecutively to those of 351/09. For 353/09 he was sentenced to 7 months for larceny again to be consecutive to his earlier sentences. For 354/09 he was sentenced to 7 months for larceny which was again ordered to be served consecutively. In 015/12, the "police" offences, he was sentenced to 7 months for assaulting a police officer, 9 months for escape and 11 months for resisting arrest. These 11 month concurrent terms were, quite properly, ordered to run consecutively to all other terms. For 016/02 he was sentenced to 22 months for the burglary and a concurrent term of 11 months for the theft, a term again to be consecutive to other terms. For the final case 017/12 he was sentenced to 19 months for the burglary and to 11 months for each of the two thefts all terms to be concurrent but again to be consecutive to all other sentences.

5. The total term ordered to be served by the appellant was 7 years and 7 months.

6. In a composite sentence which covered all of the offences that the accused had pleaded guilty to, the learned Magistrate unfortunately appears to have fallen into several errors.

7. In the circumstances I propose to quash the sentences passed below and sentence afresh pursuant to section 256(2) of the Criminal Procedure Decree 2009.

8. One group of offences were committed in 2009 when the appellant was but 18 years old, and the second group in 2011 when he was 20. He told the Court that he was a cane farmer, and the eldest child in a family helping to look after his young siblings. The father had left the family and they faced financial difficulties. He was remorseful and asked for forgiveness.

9. The appellant at the time of sentence had two previous convictions in 2010 for AOABH and for theft. Although there is multiple offending on the part of the appellant in this series of offences, the Sentencing and Penalties Decree does not allow me to declare him an habitual offender because he does not have a large number of relevant previous convictions.

10. The tariff for burglary simpliciter (i.e. not aggravated burglary) is between 18 months and 36 months (Mucunabitu HAC 17.10). The accepted tariff for burglary of domestic premises is three years (Tabeusi HAC 095 of 2010 Ltk). For theft, a sentence of at least nine months should be imposed for a second or subsequent offence.

11. For the burglary, I adopt the same sentence as the Magistrate – that is 14 months which appears to be correct and for the larceny in dwelling house I again take her sentence of twelve months reduced by three months for the guilty plea – making a sentence of nine months. The Magistrate's "aggravating feature" is invalid as is her arithmetic. This theft shall be concurrent with the burglary making a total sentence of fourteen months for this case.

12. Again the sentence of 14 months for the burglary is correct and a sentence of nine months is appropriate for the larceny offence, making a concurrent total of fourteen months for this case.

13. This sentence of larceny of ducks was increased by three months by the learned Magistrate because the appellant had eaten the ducks. This is unfair. Elements of the offence of larceny are "taking away" and "permanently depriving" and it is therefore not appropriate to make non-recovery of the goods stolen an aggravating feature. I will restore the sentence prior to the enhancement which was one of four months.

14. In this case the chickens suffered the same fate as the ducks and therefore it is not an aggravating feature that they became dinner. I adopt the unenhanced sentence of four months.

15. All of these sentences that is 351/09 to 354/09 will be served concurrently making an interim total of fourteen months.

16. These contempt for authority offences are rather serious. The sentences are correct – that is eleven months for resisting arrest, 9 months for escape and 7 months for assaulting a Police Officer. These sentences will all be served concurrently with each other; however the Sentencing & Penalties Decree 2009 dictates that escape offences should be served consecutively to other offences and although not specified in the Decree, this Court is of the view that assaults on an officer and resisting arrest should be in the same category. These concurrent sentences of eleven months will be served consecutive to the earlier fourteen month sentence.

17. For this burglary I adopt the same sentence as the earlier burglaries which is 14 months. (The Magistrate gives no reason for passing a longer sentence for the burglaries in 2012, despite saying that the tariff under the Penal Code and Crimes Decree is the same.) For the theft offence the aggravating feature of goods not recovered is inappropriate (see par. 13 supra) and I remove it. The sentence for the theft will be seven months to be served concurrently with the burglary.

18. Again I sentence 14 months for the burglary and a concurrent term of seven months for the theft. For the second theft in this case I also sentence him to a concurrent term of seven months.

19. The sentences for CR 16/12 and CR 17/12 will be served concurrently with each other making a total term of fourteen months imprisonment.

20. The offences committed in 2009 and those in 2011 are obviously two very different transactions and as such should attract consecutive sentences. The first set of offences has incurred sentences of 14 months, and the escape sentences a mandatory term of 11 months consecutive. The question arises as to whether the second set of 2011 sentences, which have incurred sentences of fourteen months, should be served concurrently or consecutively with the earlier sentences. If they are to be consecutive then the appellant faces a term of imprisonment 39 months, if concurrent a sentence of 25 months.

21. The totality principle was expressed by Thomas in his authoritative work "Principles of Sentencing" 2nd ed at p.56:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentence, to review the aggregate sentence and consider whether the aggregate is just and appropriate."

22. It is quite clear that the learned Magistrate did not unfortunately "review the aggregate sentence" in this case, or as some authorities would have it "stand back" and consider whether the final sentence is just and appropriate.

23. It is of importance in this case to keep in mind that the accused is young and that a lot of the items that were stolen were, pathetically, foodstuffs. It must also be bourne in mind that had the 2009 offences been dealt with in a timely manner, then he would be serving sentence for these when sentenced for the 2011 offences. These later sentences would have then been made concurrent to any term that he was serving in terms of the Sentencing & Penalties Decree 2009.

24. In those circumstances, and "standing back", this Court is of the view that it is just and appropriate to make all of the sentences concurrent, apart from the "escape" offencs which must be made consecutive.

25. The appeal against sentence is allowed and the sentence of seven years and seven months is quashed. A new sentence of two years and one month is imposed.

26. The appellant will serve a minimum term of eighteen months in respect of these offences, dating from the date of the original sentence in the Ba Magistrate's Court, being 28 March 2012.

High Court of Fiji

Mosi v State [2012] FJHC 1348; Criminal Apeal 138.2012 (1 October 2012)