Ali v Reginam [1977] FJSC 58; Criminal Appeal 082 of 1977 (30 September 1977)

Fiji Islands - Ali, M v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 82 of 1977

HAMMED MMED ALI
s/o Rahmat Ali
Appellant

v

REGINAM
Respondent

JUDGMENT

The appellant was coas convicted before the Magistrate's Court of Suva of shop-breaking, enternd larceny contrary to section 333(a) of the Penal Code and sentence to 3 years' imprisonmesonment.

He appeals against his conviction on several grounds which together allege that the learned Magistrate erred in accepting the evidence of the main prosecuting witness.

The Director of Public Prosecutions appeals against the sentence on the ground that, in view of the appellant's appalling record, it is manifestly inadequate.

The prosecution evidence, which was admitted by the appellant, was that he, the appellant, had sold several pieces of heavy black leather to certain shopkeepers and some other pieces of the same kind were found in his possession.

This leather, the appellant maintained, he had purchased from a Pakistani sailor off a ship. The sailor did not give him any receipt for the purchase money Dev Chand, a factory owner, gave evidence that his factory storeroom at Lakemba street was broken into on the night of 31st of May 1977 and a bundle of leather and 3 bundles of rubber were stolen. He identified the leather taken from the appellant as the kind of leather stolen from his storeroom. He further stated that he was the sole importer of that kind of leather into Fiji.

The learned Magistrate accepted this evidence and held that the leather sold by the appellant and found in his possession was stole property. He rejected the appellant's explanation as to how he had come to acquire it.

I can see nothing in what the appellant has said in his grounds of appeal, or in this Court, which would persuade me to the view that the learned Magistrate erred in accepting the prosecution evidence. His appeal is therefore dismissed.

As for the sentence, learned Counsel for the Crown correctly points out that the appellant's career of crimes started in1941 when he was still a youngster and was then sentenced to be detained at Nasinu Approved School. He has been in and out of prison ever since, receiving as much as 4 1/2 years prison sentence for house breaking in 1954 and one of 7 years for larceny in 1958. His last sentence of imprisonment was of 3 years in 1974 and the present offence was committed by him within a short period of his release from prison. Learned Counsel urges that a person like the appellant must be treated as beyond reform and the sentence imposed ought to aim at protecting the community from him. I accept the submission that the possibility of reform in this case is extremely remote but he must, nevertheless, be sentenced mainly for the kind of offence he has in fact committed. In this case it was an isolated act of larceny for which a sentence of 3 years, imprisonment, though a little lenient in view of the appellant's record, cannot be regarded as manifestly inadequate. The sentence will, therefore, remain undisturbed.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
30^th September 1977