Daruna v State [1997] FJLawRp 18; [1997] 43 FLR 113 (21 May 1997)

[1997] 43 FLR 113

HIGH COURT OF FIJI ISLANDS

PENAIA BALE DARUNA & ILISONI MEKEMEKE

v

STATE

[HIGH COURT, 1997 (Pathik J) 21 May]

Appellate Jurisdiction

Sentence- shop breaking entry and larceny- relevance of mitigating factors- Penal Code (Cap. 17) Sn 300 (a).

Cases citr>

Sharda Prasad v. State (Crim. App. No. 4/p>

p>Sultan v. Svikart [1989] NTSC 20; (1989) 96 FLR 457

Appes in personMs. L. Laveti for the
&#1b>
r>Pathik J:

On 5 March 1997 the appellants were conv convicted and sentenced in the Labasa Magte&#8 Court by Magistrgistrate Moses Fernando Esq., on their own plea of the offence of shop brep breaking entering and larceny contrary ttion 300(a) of the
The particulars of offwnce were that between 25 February 1997 and 26 February 1997 the appellants with another broke and entered the Lakshmi Office Se Shop and stole from therein certain items and cash to the total value of $3741.00 the prop property of Latchmaiya Naidu s/o Nagaiya.

Upon their convictach aach appellant was sentenced to 18 months imprisonment. The suspended sentence imposed on First Appellant on 28 June 1996 was activated to be served consecutive to this sentence.

Tpellants appeals are aare against the severity of sentence.

The first appellant says that the sentence is “too much” compared to other us cases. He says that bulk of the items have been recovereovered and that he is a first offender.

The second appellant that all items have been reen recovered. He admitted that he has two previous convictions.

Thrned State counsel suel subd that only items worth $1889 have been recovered. She said that both have previous convictnvictions and that custodial sentence is wted. However, she submits that the sentence meted out is onis on the higher side bearing in mind the mitigating factors about which the Magistrate says nothing before sentencing. In these circumstances she feels that a reduction in sentence will not be inappropriate.

Bearing in mhe facts ofts of this case, the appellants’ guilty plea and the recovery of half the stolen items, consideration should have been given to these mitigating factors. Whether that was done or not cannot be gathered from the record for there it is merely stated that “breaking into shops and house are becoming more and more common in the area now. In my view both accused deserve custodial sentence. Each accused sentenced to 18 months imprisonment”.

The sentencing remarks,arks, in the absence of any reference to the mitigating factors, give the impression that it was only the preve of the offence that was taken into account before the sentence was passed.

A
Althouere is no leno legal requirement, and knowing how busy the Magistrates are, it would be a good practice to put in a relatively small compass that mitigating fachave been taken into account in sentencing, rather than lean leaving the accused to guess whether that was done or not. This procedure will assist the appellate Court as well if there is an appeal and it will also help the accused to decide whether to appeal or not. A lot of cases which come on appeal are based on the ground that the sentence is harsh and excessive and mitigating factors have not been taken into account.

The appellate Cwill notl not intervene unless it is shown that there is some reason for concluding that the sentencing discretion was improperly exercised. (Sultan v Svikart [1989] NTSC 20; (1989) 96 FLR 457 at 458-459). For entlyegardegarding the mitigating factors I would say that the Magistrate’s sentencinencing discretion was wrongly exercised. Io appears likely that the magistrate placed some weight on the appellants’ prior reco record vis a vis the mitigating factors. However, it is unnecessary to speculate as to how the sentence was determined for the fact that mitigating factors were not taken into account its excessive nature is manifest establishing error. This court is therefore free to interfere with the sentence. Ms. Laveti referred the Court to the case of Sharda Pra/o Mathura Praa Prasad v State (Crim. App. No. 4/96) in which Fatiaki J said that although a custodial sentence was merited, “however, in the absence of any record by the learneal Maate that he had thad taken into consideration the appellants’ plea of guilty, this cois court is able to mitigate the sentence by a small reduction”.

In the outcome, on thesfacts and circumstances of this case and for the above reasons, the sentence is accordingly reduced to 15 months’ imprisonment in the case of each appellant with effect from 5 March 199e first appellant’s a7;s activation of suspended sentence is not disturbed. Subject to such reduction in the sentence the appeal is dismissed.

als partly allowed; wed; sentences varied).