Naiteqa v State [2012] FJHC 935; HAA032.2011 (13 March 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 032 of 2011

BETWEEN:

MARINO NAITEQA
The Appellant

AND:

THE STATE
The Respondent

Counsel: Mr. A. Sen for the Appellant
Ms. M. Fong for the State

Date of Hearing: 12 March 2012
Date of Judgment: 13 March 2012

JUDGMENT

[1] The appellant was convicted of theft on his own guilty plea and was sentenced to 8 months' imprisonment in the Magistrates' Court at Savusavu. He appeals against sentence.

[2] The facts were that the appellant appropriated a barbeque meal from the victim on the pretext of buying it in a carnival held in Savusavu on 23 July 2011. The cost of the meal was $5.00. After taking possession of the meal, the appellant walked away without paying for it. Shortly after, the appellant was apprehended by the security officers at the carnival.

[3] The main ground of appeal is that the custodial sentence is excessive in all circumstances of the case.

[4] At the time of the offending, the appellant was 24 years old and was unemployed. He entered an early guilty plea and expressed remorse.

[5] Two errors are clearly discernible in the sentence imposed on the appellant.

[6] The learned Magistrate took into account the nature of the victim's family business of selling barbeque and the time and effort put by them to run it as aggravating factors.

[7] None of these matters aggravated the offending in this case. In fact, there was no aggravating factor present. The State concedes this point.

[8] After adjusting the sentence to reflect the mitigating and aggravating factors, the learned Magistrate arrived at a term of 8 months' imprisonment. The term of 8 months is within the tariff for theft, the maximum being 10 years imprisonment.

[9] However, when the learned Magistrate came to consider suspension of the sentence, he stated the following:

"I feel that you have not learnt from the courts leniency shown to you in the past. You showed sheer arrogance and disregard for the leniency while committing this offence".

[10] Earlier in his sentencing remarks, the learned Magistrate considered the appellant's previous good character as a mitigating factor. The appellant was a first time offender. There was no evidence that the appellant had previously disregarded the laws of this country. By treating him as a person who had not previously made use of the leniency shown to him by the courts, was an error on behalf of the learned Magistrate.

[11] A basic principle of sentencing is that the punishment must fit the crime. The crime in the present case was stealing a meal worth $5.00. There was no planning involved. This was a crime of opportunity. The appellant probably was hungry but had no money to buy a meal. On an objective assessment of the facts, the custodial sentence is excessive for a first time young offender who had pleaded guilty and expressed remorse for his crime.

[12] The appellant informs the court that he has served a substantial period of his term and is due to be released from the prison on 21 March 2012.

[13] Given my conclusion that the appellant's sentence is excessive on the objective assessment of the facts of this case, I allow the appeal and order his immediate release from the prison.

[14] The appeal against sentence is allowed.

Daniel Goundar
Judge

At Labasa
Tuesday 13 March 2012

Solicitors:
Office of Messrs Maqbool & Co., Labasa for Appellant
Office of the Director of Public Prosecutions, Labasa for State