Singh v State [2013] FJHC 678; HAA013.2013 (12 December 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA013 of 2013

BETWEEN:

GYAN SINGH
Appellant

AND:

THE STATE
Respondent

Counsel: Ms M. Lemaki for Appellant
Mr. S. Vodokisolomone for State

Date of Hearing: 9 December 2013
Date of Judgment: 12 December 2013

JUDGMENT

Introduction

[1] Following a trial in the Magistrates' Court, the appellant was convicted of theft of a goat valued at $150.00 and sentenced to 4 years' imprisonment. This appeal is against both conviction and sentence.

[2] At trial, the prosecution led evidence that on 25 September 2009 the complainant found out that one of his goats was missing from his farm at Lekutu, Bua. The complainant's evidence was that all his goats were branded on the ear with the number 7. He said the missing goat was white in colour.On the same day (25/9/09) another farmer (PW2) saw the appellant carrying a white goat with the mark number 7 on the ear. Another farmer (PW3) gave evidence that on 25 September 2009, the appellant brought goat meat to his home and stayed with him for three days.

[3] The caution interview of the appellant was tendered without any objection. The caution interview contained exculpatory statements from the appellant. He said that on 25 September 2009, he was carrying his own goat when (PW2) saw him. He said his goat was also white in colour and that it did not have the marknumber 7 on the ear. The appellant gave evidence consistent with his caution interview. He said he did not take any meat to PW3's home on 25 September 2009. He only remembers taking a female goat to PW3's home sometimes in September 2009. He said the goat he was seen carrying on 25 September 2009 was loaded in his sister's taxi and taken to Suva.

Conviction Appeal

[4] The grounds of appeal against conviction in substanceare:

1. (PW2) was not a credible witness because he made a previous inconsistent statement.

2. The identity of the stolen goat was not proven.

3. The prosecution did not prove the case beyond a reasonable doubt.

[5] At trial (PW2) was cross-examined on his statement to the police. In his evidence (PW2) said he saw the appellant carrying a white goat on 25 September 2009. In his police statement he said he saw the appellant carrying a brown goat. The colour of the stolen goat was a material inconsistency. (PW2)'s explanation for the inconsistency was that he told the police he saw a white goat and he could not explain why the police wrote a different colour. He maintained in his evidence that he saw a white goat. In my judgment, the appellant was not prejudiced by the inconsistency in the colour of the goat. The appellant gave evidence that he was carrying a white goat when (PW2) saw him. The issue was not the colour of the goat. The issue was whether the goat (PW2) saw was the one that had the mark number 7 on one of its ears. There was no inconsistency in (PW2)'s evidence as far as this brand mark was concerned. Taken together with the evidence of (PW3) that the appellant came to his home with some goat meat, the learned magistrate felt satisfied that the appellant stole the goat belonging to the complainant. This finding was available on the evidence and therefore the appeal against conviction has no merits.

Sentence Appeal

[6] The appellant's only ground of appeal against sentence is that it is harsh and excessive.

[7] Theft of goats has always been considered a serious offence to attract an immediate custodial sentence. In Chand v The State [1989] FJHC6; HAA0019j; 1989b (23 October 1989), the appellant pleaded guilty to theft of a goat. He told the court that he stole the goat to feed his family. The appellant's sentence of 12 months' imprisonment was upheld by the High Court. Fatiaki J (as he then was) made the following observations:

"...stealing goats is not acceptable way of providing for one's family and the courts must pass a sentence that will deter others from committing such offences. Needless to say once a goat is slaughtered its flesh can be swiftly disposed of to a ready market and detection thereafter becomes difficult, if not impossible".

[8] In Koroi v State [2001] FJHC 203; Criminal Appeal 22.2001 (27 June 2001), the appellant pleaded guilty to theft of a goat valued at $150.00 and was sentenced to 12 months' imprisonment. On appeal, Pathik J reduced the sentence to 6 months' imprisonment because the stolen goat was recovered and restored to the owner.

[9] In Waqa v The State [2004] FJHC 488; HAA0101 2004L (22 October 2004),the appellant stole two goats valued at $200.00. He pleaded guilty to the charge and was sentenced to 18 months' imprisonment. Both goats were recovered and restored to the owner. On appeal, Connor J upheld the sentence, saying an appropriate starting point for theft of a goat is 18 months' imprisonment.

[10] In Anith Kumar v State [2008] HAM 004/08L (14 April 2008), the High Court stated that sentences for theft of goats should only be suspended when the offender is a young and a first time offender, or the stolen goat has been recovered and restored to the owner, or the offender had made full restitution to the owner and expressed remorse by pleading guilty. Unless these factors are present for rehabilitation purpose, the main purposes of sentence for stealing goats should be special and general deterrence. Like any other livestock farming, goat farming is a vital source of income for rural farmers. The courts must pass sentence that protects the farmers from those who attack their livestock.

[11] In the present case, the learned Magistrate said that 'the tariff for farm theft is normally a sentence 2 to 4 years imprisonment'. After identifying this tariff, the learned Magistrate then picked 5 years as his starting point. No reasonsare given for selecting a starting point that was outside the identified range. The sentence was then reduced to 4 years to reflect the appellant's personal circumstances, that is, he was 40 years old and married with a child.The appellant had a long list of previous convictions for theft. The learned Magistrate said the purpose of the appellant's sentence was special deterrence.

[12] Two errors are apparent from the sentencing remarks of the learned Magistrate. Firstly, the learned Magistrate incorrectly identified the tariff for farm theft to be 2 to 4 years imprisonment without citing any authority. The tariff for theft of goats as identified by the cases cited in this judgment is 6-18 months' imprisonment. Secondly, the learned Magistrate erred by selecting 5 years as his starting point outside the incorrect range that he identified. Starting point should be picked from within the range to have uniformity in sentences. As the Court of Appeal pointed out inLaisiasa Koroivuki v State Criminal Appeal No AAU0018 of 2010at [26]-[27]:

"The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even-handedly given in similar cases. When punishments are even-handedly given to the offenders, the public's confidence in the criminal justice system is maintained.

In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

[13] It is clear that the learned Magistrate made an appealable error in selecting of his starting point that was not based on an objective seriousness of the offence. As a result, the final sentence is disproportionate and excessive.

[14] On an objective seriousness of the offence, 18 months is an appropriate starting point. No mitigating or aggravating factors are present to adjust the sentence. A term of 18 months' imprisonment is an appropriate and proportionate sentence in all circumstances of this case.

[15] For these reasons, the appeal against sentence must be allowed.

[16] Result

Appeal against conviction dismissed.

Appeal against sentence allowed.
The term of 4 years' imprisonment is quashed and substituted with a term of 18 months' imprisonment effective from 25 June 2013.

Daniel Goundar
JUDGE

At Labasa
12 December 2013

Solicitors:
Legal Aid Commission, Labasa for Appellant.
Office of the Director of Prosecutions, Labasa for State.