Dugu v State [2018] FJHC 172; HAA06.2018 (14 March 2018)

IN THE HIGH COURT OF FIJI

AT LABASA

[APPELLATE JURISDICTION]

CRIMINAL APPEAL CASE NO. HAA06 OF 2018

(Magistrates’ Court Case No. 480 of 2016)

BETWEEN: ILIESA SAISAI DUGU

APPELLANT

AND: THE STATE

RESPONDENT

Counsel: Appellant in person

Ms D Kumar for the Respondent

Date of Hearing: 14 March 2018

Date of Judgment: 14 March 2018

JUDGMENT

[1] This is an untimely appeal against sentence only.

[2] The appellant was charged with one count of burglary and one count of theft. He appeared in the Magistrates’ Court and pleaded guilty to the charges after waiving his right to counsel. He admitted the following facts tendered by the prosecution in support of the charges:

On the 15^th day of August, 2016 at about 8.30pm at Grand Eastern Hotel, Labasa one ILIESA SAISAI DUGU (offender), 21 yrs, farmer of Lomaloma village, Seaqaqa entered into the Grand Eastern Hotel Room No. 116 and stole from therein 01 x 4GB USB valued at $10.00, A$105.00 cash, to the total value of $115.00 the properties of one HEMALATHA SIVAKUMARAN (victim), 45 yrs, Doctor of 19/125 Hawthorn Road, Forest Hill, Vic 3131.

On the above mentioned date, time and place the victim after returning from a camp at Nadogo Central College and was talking to another clinician at the Hotel Reception when her husband namely Prasannab Pandittha (PW-2) 44 years old, Doctor of Melbourne, Australia came running and told her that someone entered into their room and had just run away by jumping out of a broken window. The matter was reported to police and upon police arrival, the description was given to the police about the offender. Search was conducted and the offender was later found walking towards Nayaca Sub Division. The offender was arrested by PC 3493 Pita (PW-3) police officer of Labasa Police station and the stolen items were recovered from him.

Sub-Recovery:

1 x USB Drive Lexer Brand valued at $10.00

1 x Nab Visa Card

2 x $50-00 Australian Currency

1 x $5-00 Australian Currency

[3] The learned magistrate convicted the appellant, and on 25 July 2017, sentenced him to 1 year, 8 months imprisonment for burglary and 10 months imprisonment for theft, to be served concurrently. The sentence was further made concurrent with any pre- existing sentence. The appellant filed this appeal on 1 March 2018. The appeal is late by 8 months.

[4] The complaints against sentence are that the starting point of 2 years was too high and that the learned magistrate was wrong to consider the elements of the offences charged as aggravating factors. The choice of a starting point does not involve an error of principle. The starting point is a guide to arrive at a sentence that is just in all circumstances of the case. However, I accept that the learned magistrate has wrongly considered the facts that the appellant entered a hotel room and stole items as aggravating factors. The entry into the hotel room and taking of items from the room were the elements of burglary and theft. But I am not convinced that the appellant was prejudiced by the error.

[5] In sentencing the appellant, the learned magistrate took into account that the appellant had entered an early guilty plea and had expressed genuine remorse. The sentence was discounted to reflect these factors. The learned magistrate took the view that a deterrent sentence was warranted because the appellant had previous convictions for similar offences and had not made use of the leniency shown to him by the courts in the past. The appellant was also fortunate that his sentence was made concurrent with his pre-existing sentence for a separate offence of theft.

[6] The sentence that was imposed on the appellant is within the tariff for burglary and theft. It reflects the seriousness of the offence and the seriousness of the actual conduct of the appellant. There is no error in the exercise of the sentencing discretion. I would grant an enlargement of time but dismiss the appeal.

[6] The appeal is dismissed.

................................... .......

Hon. Mr Justice Daniel Goundar

Solicitors:

Appellant in person

Office of the Director of Public Prosecutions for the Respondent