Kumar v State [2000] FJLawRp 65; [2000] 1 FLR 273 (17 November 2000)

[2000] 1 FLR 273

IN THE HIGH COURT OF FIJI

ASHOK KUMAR

v

STATE

High Court Criminal Appellate Jurisdiction
Prakash, J
17 November, 2000
HAA 058/00L

Sentencing - appeal against sentence - bulkstore breaking entering and larceny - unrepresented accused - two co-accused convicted and sentenced for 18 months - Penal Code s300(a)

On a guilty plea on charge of a Bulk Store breaking, entering and larceny, the accused was convicted and sentenced to 2 years imprisonment. The magistrate found he was the principal offender, a finding not shared beyond reasonable belief by the appellate court. He appealed and presented mitigatory factors.

Held - to remove a sense of injustice, the practice of the appellate Court is to reduce the more severe sentence of a co-accused only if there is a glaring difference between the treatment of one man as compared with another so that a real sense of grievance would not be engendered.

2 year sentence is set aside and substituted for sentence of 18 months.

No cases referred to in Judgment

Appellant in person
Linda Fagbenro for the respondent

17 November 2000.

JUDGMENT

Prakash, J

The Appellant was tried in the Lautoka Magistrates Court for one count of Bulkstore Breaking Entering and Larceny - contrary to Section 300(a) of the Penal Code. He was found guilty, as charged, and sentenced to 2 years imprisonment. He is appealing against his sentence. In his petition of Appeal he has presented various mitigatory factors, including his age, that he is the only breadwinner in his family, and that he was last in prison in 1995. He alleges he was framed in this offence claiming that the evidence of a convicted prisoner was relied upon. He also claims that he was not given sufficient time to prepare for trial since he only received the disclosures 2 days before the trial. He has also given examples of sentences in other offences, especially robbery with violence, where less harsh sentences were imposed.

I have perused the record of the Lautoka Magistrates Court. There is nothing to suggest that the trial was not proper and fair. On the evidence before the learned Magistrate the accused was properly found guilty as charged. It is not recorded that accused had sought an adjournment.

In his sentencing remarks the learned Magistrate was rather brief. The records states:

"Take account part of items recovered. Remorse not seen on him at all. Custodial sentence appropriate. Previous convictions - similar nature."

In his, judgment, the learned Magistrate had found that the Appellant "- acted as the principal offender in the break-in". In considering the evidence of the co-accused Sireli Bera (PW1) and Atish Chand (PW4) the receiver of the goods, it is not clear beyond reasonable doubt if it was so. In cross-examination (PW1) stated that the Appellant did not enter the bulk store. In his unsworn evidence the Appellant had stated that he did "not enter bulk store so I plead not guilty". He was not represented. I am also not clear from the evidence of the employees of the complainant, (PW2) and (PW3) what was the actual quantity and value of tyres and tubes stolen. It is also not clear from the evidence of the Investigating Officer (PW5) whether all the tyres were recovered or some. The search list was exhibited but this was not fully explained.

Whatever was the role of the Appellant in the offence he was liable under s21 of the Penal Code as a principal or aider and abettor. He did organise the disposal of the goods. However, he appears to have some genuine grievances arising in the course of the proceedings, (see Thomas D.A. (2nd Ed.): Principles of Sentencing p.220). He was unrepresented. The Court needs to remove any sense of injustice he may have. In his submissions before this Court he has shown remorse. He has also submitted cases where he claims the Courts have been lenient to the offenders for more serious offences of Robbery with Violence. The State has not opposed his submission on these cases. In the absence of proper citations this Court has not been able to locate the relevant cases.

It is clear from the Magistrates Court record that the co-accused had pleaded guilty and was sentenced to 18 months concurrent to the sentence he was serving. The co-accused also had previous convictions. It maybe that the co-accused pleaded guilty since he was already in prison.

The records indicate that the Appellant's last conviction was in January 1995 for an offence of larceny.

Thomas (supra) states that: "In some cases the Court is confronted with an appellant whose sentence appears correct in every respect, but whose co-defendant has received a sentence which is in the Courts view unduly lenient. In such a case the practice of the Court is to reduce the more severe sentence only if there is such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered" (p72).

I have considered the submissions by the State and what has been said by the accused. I have considered the record of the Magistrates Court and the relevant principles applicable. The Court will allow the appeal to a limited extent only. The 2 year sentence of the Lautoka Magistrates Court is set aside, and a sentence of 18 months is substituted.

Appeal allowed.

MARIE CHAN