Totovosau v State [2013] FJHC 561; HAA16.2013 (25 October 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 16 OF 2013

BETWEEN:

JALESI VUKI TOTOVOSAU
APPELLANT

AND:

STATE
RESPONDENT

Mr. J. Singh for the Appellant
Mr. F. Lacanivalu for the State

Date of Hearing : 13 &28 August, 16 & 30 September,
7, 21 & 23 October, 2013

Date of Judgment: 25 October, 2013

JUDGMENT

[1] On the 17th May 2013 in the Magistrates Court at Sigatoka, the appellant was convicted on his own plea on theft of a cow to the value of $1,000. He was sentenced on the same day to a term of imprisonment of 22 months.

[2] The appellant appeals the sentence on the grounds that:

• it is manifestly excessive in the circumstances
• it fails to take into account the accepted tariff
• the appellant was not afforded sufficient credit for strong mitigating factors such as plea of guilty, young offender and a willingness to make restitution
  

[3] The facts of the case were that on the 25th December 2012 at Nadrala, Sigatoka, a farmer had left his cow "W2S" out to graze. At that time the accused who was drinking in town received a call from a client asking to buy a cow. The accused went to the grazing land, slaughtered the cow and took it to the client in Tagaqe and sold it to him for $800. On information given, the accused was questioned and he freely admitted the offence saying he was drunk; he had spent the money and he was willing to replace the animal.

[4] In his sentencing remarks, the learned Magistrate correctly identified the tariff for theft to be between 2 and 9 months. He acknowledged the fact that any subsequent conviction could attract a sentence in excess of 9 months. He then took a starting point of 2 years "in view of the circumstances". He added four months to reflect the worth of animals in a farming community and deducted 6 months for "early plea and other mitigating factors" arriving at the final sentence of 22 months. In considering whether to suspend the sentence he referred to a previous conviction for larceny of cattle and also referred to a decision of Fatiaki J. in Tadeo Samate (C.A. 001/97) that said theft of animals in a farming community must be visited by an immediate custodial sentence.

[5] The Magistrate unfortunately fell into error by finding that the accused was handicapped by a previous conviction for larceny. That conviction which is dated 1st April 2003, is just over 10 years prior and as such it is spent.

[6] Although the Magistrate didn't say so, it appears from his sentence when he refers to enhanced sentences for repeat offending and then taking a harsh starting point that he is already factoring the previous conviction into his starting point.

[7] Theft of livestock admittedly is very serious in a rural community and for a first offence which this is deemed to be an appropriate starting point would be 15 months imprisonment.

[8] This Court is of the view that not enough credit was given for the plea of guilty and the mitigating factors and the sentence is therefore re-cast pursuant to section 256(2) of the Criminal Procedure Decree 2009.

[9] I take a starting point of fifteen months imprisonment. There are no additional aggravating features but for the plea of guilty and the offer to reimburse the farmer I deduct 6 months from that interim total arriving at a sentence of nine months imprisonment. He has already spent five months in custody for the crime which is sufficient punishment. The balance of his sentence is to be suspended for a period of two years.

[10] A suspended sentence is explained and he is to be released from custody today.

Paul K. Madigan
Judge

At Lautoka
25 October 2013