Ali v Reginam [1977] FJSC 156; Criminal Appeal 102 of 1977 (14 October 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 102 of 1977

BETWEEN

NAZIN ALI
s/o Hidayat Ali
Appellant

AND

REGINAM
Respondent

Appellant in person.
Mr. Ikbal Khan, Counsel for the Respondent.

JUDGMENT

The appellant pleaded Not Guilty in a magistrate's Court to office-breaking and larceny. He was convicted and sentenced to 2½ years imprisonment.

He appealed against his conviction and sentence.

The statement of offence alleges that on the 17th day of September, 1976 he broke into an office of the magistrate's court and stole a transistor radio valued $6.00 the property of Mohammed Yakub.

The latter, a Messenger, on the court staff left his radio in the drawer in an office and locked the drawer, about 4.00 p.m. to 5.00 p.m. on Friday 17th September. At 7.30 a.m. on Monday 20th September he found the office door still locked but the drawer containing the radio had been forced and the radio was missing. He says the building was properly secured.

P.W.2, a Court Officer was passing the court on the morning of Sunday 19th September when he noticed a window adjoining the complainant's room was open. He had keys on him which he used to enter the building and he secured the window and locked the office door.

At 8.30 a.m. on 21/9/77 the accused was found in possession of the radio. He told the police he had bought it on 18/9/77 for 50c. from a man whom he does not know.

The prosecution evidence which was not challenged also revealed that the appellant had been working at the court compound and was often in the complainant's office.

The magistrate did not believe the appellant's evidence of purchasing the radio but accepted his statement that he had been in possession of it on 18/9/77, not more than a day after it had been left in the complainant's office. Accepting that entry would not be forced until all court's staff and others in the vicinity had departed it is apparent that the appellant had possession less than a full day after the theft.

In my view the magistrate had ample evidence before him to justify the accused's conviction and the appeal in that respect must fail.

Crown Counsel did not wish to be heard on the appeal against sentence.

In my opinion it was excessive for the following reasons.

The crime was certainly not that of a thief who had planned it before-hand. There is no suggestion that there was an attempt to ransack other offices in the building. No other article of any value other than the $6.00 pocket transister was removed. It was not the concept of a thorough criminal nor the effort of one whom I could regard as a dangerous or determined criminal.

It seems that early in 1975 the appellant was involved in a series of office-breaking and house-breaking offences and on 27.6.75 he was convicted of seven such offences, receiving sentences varying from 12 months to 2 years. Nevertheless one is still bound to have regard to the circumstances of the particular case for which the sentence is being imposed.

He cannot, in spite of his convictions be regarded as a persistent offender because they were all recorded on one day. The appellant is not yet a person who has been frequently in and out of prison.

In all the circumstances I feel that a sentence of 15 months is appropriate.

It is Ordered that the appeal against conviction be dismissed AND that the appeal against the severity of the sentence be allowed to the extent that it is reduced to a term of 15 months' imprisonment.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
14/10/77

Director of Public Prosecutions for the Respondent
Appellant in Person.

Date of Hearing: 7th day of October, 1977.