Rogosau v Reginam [1978] FJSC 45; Criminal Appeal 050 of 1978 (31 July 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No 50 of 1978

Between:

EPARAMA ROGOSAU

and

REGINAM

JUDGMENT

On the 31st October 1975 the appellant was convicted on his own plea by Suva Magistrates Court of receiving stolen property contrary to section 347(1) of the Penal Code (hereinafter called count 1), shopbreaking entering and larceny contrary to section 333(a) of the Penal Code (hereinafter called count 2), and storebreaking entering and larceny contrary to section 333(a) of the Penal Code (hereinafter called count 3), and was sentenced to two years' imprisonment on count 1, twelve months' imprisonment on count 2 and two years' imprisonment on count 3, amounting to an overall term of five years' imprisonment.

On the 25th April 1978 Suva Magistrates Court allowed the appellant to lodge an appeal out of time against severity of sentence, as according to prison records a petition of appeal was forwarded to Suva Magistrates Court on behalf of the appellant on the 6th November 1975 although there is no trace of it having been received. Fortunately the appellant has not been prejudiced in any way by the resultant delay.

The trial Magistrate was justified in imposing consecutive sentences, as the offences were not related and were committed at different times; and there are no grounds for this Court interfering with the sentences imposed on counts 1 and 2 as they were serious offences and the appellant has, inter alia, four previous convictions for dishonesty. However the facts which gave rise to count 3, namely the forcing open of the door of a school canteen and the theft therefrom of two tins of foodstuff and a carton of washing powder together worth $44, warrant a less severe sentence.

The appeal in so far as it relates to counts 1 and 2 is dismissed. So far as count 3 is concerned, the sentence is quashed and in substitution therefor the appellant is sentenced to fifteen months' imprisonment with effect from the 31st October 1975; thereby reducing the overall sentence to four years three months' imprisonment.

Clifford H. Grant
Chief Justice

Suva,
31st July 1978.