Prasad v Reginam [1979] FJSC 19; Criminal Appeal 48 of 1979 (24 August 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No. 48 of 1979

BETWEEN

JAG PRASAD
s/o Sarju Prasad
Appellant

AND

REGINAM
Respondent

Appellant in Person
Mr. D. Williams, Counsel for the Respondent

JUDGMENT

This is a house-breaker's appeal against a sentence of 9 years imprisonment imposed upon him by a Lautoka magistrate.

He pleaded guilty to eight charges of house-breaking and larceny contrary to section 333(a) of the Penal Code which took place in the residential areas of Lautoka City between 24th May and his arrest on 27.6.79 by the police.

The facts outlined to the learned magistrate showed that the appellant arrived in Nadi from Nasinu early in May 1979 and began to cohabit with a female there. He then commuted regularly from Nadi to Lautoka where he selected houses the occupiers of which were out at work. It is apparent that these were not haphazard attacks on dwellings selected at random. The occupants were on all occasions at work and none appears to have appeared unexpectedly and disturbed the appellant. Obviously the appellant had kept some kind of observation on the premises to ensure that they were unoccupied and were likely to remain so long enough for him to commit his crime and make a safe get away.

The particulars of offence reveal that his modus operandi in effecting entry was to remove glass louvres in the windows and cut the wire mosquito screening. On occasions he removed articles which must have had to be transported in some innocent looking container because the crimes were committed during the day.

Property stolen at various houses consisted of trousers, radio cassettes, watches, cassette tapes, golden ornaments and jewellery.

The value of the property stolen on each count may be summarised as follows:-

1. $500

2. $203.80

3. $100

4. $1.00

5. $148

6. $242.00

7. $152

8. $417

Of this about $976 worth was recovered.

The date of the last break-in charged against him is 25th June 1979 and when he was arrested on 26th June he had a meat chopper and a screw-driver in his possession in a folded newspaper. He was then in the residential area of Lautoka which is occupied by the F.S.C. executive type employees. The houses are all detached and situated in a large landscaped compound. Undoubtedly he was en route to 'do another job' when the police apprehended him.

Because of the frequent "break-ins" householders were not a little alarmed and the police mounted special patrols in plain cloths and civilian cars in their endeavours to capture him.

I gathered from the accused that he is a welder and boiler maker by trade. He has been educated to University Entrance standard and he came out of prison in 1974. He claims to have gone straight since that time. His home is about 8 miles from Suva and there resides his wife and 3 children - so he says. However, he explained that during his recent out-break his wife was in hospital and he needed money for her support. But the facts to which he agreed were that he was living in Nadi with some other woman. It seems that he was married in 1975 which would be about a year after his last release from prison.

His petition of appeal declares that his family will suffer by reason of his being in prison. However, the appellant is not a new comer to crime and he has in the past received quite considerate treatment in the magistrates' courts before whom he has appeared on 6 different occasions between 1968 and 1972. He was first sent to Nasinu Approved School for 2 years in May 1968 for larceny from where he escaped and whilst at large committed larceny again. This escapade caused him to be bound over for 6 months at Suva.

In April 1970, at Rakiraki he was fined $30 for house-breaking and larceny.

A month later for housebreaking and larceny he was given an 18-month sentence suspended for 2 years.

Six months later he re-appeared at Suva charged for four offences of house-breaking and larceny for which he received one year's imprisonment and the suspended sentence was activated. Whilst he was serving that 2 ¹/₂ years period it seems that 3 further charges of housing-breaking were traced to him and to which he pleaded guilty and he received 2 years imprisonment concurrently for those offences and which were made concurrent to the 2 ¹/₂ years he was already serving.

It cannot be said that he has not been given a chance by the Courts in the past. His punishment has not been severe on other occasions. Although his convictions are numerous they are the result of six appearances in court the last of which was in 1972.

He says that since being dealt with in Lautoka Magistrate's Court he has appeared before the Suva Magistrate's Court he has appeared before the Suva Magistrate's Court and received a further sentence of 3 years consecutive to the nine years he received from the Lautoka magistrate. He stated that he was convicted for nine breaking offences in Suva.

I checked on that information tendered by the appellant and received a certified copy of the relevant proceedings from the learned Chief Magistrate in Suva. It confirms the appellants statement showing that the break-ins occurred in March 1979, and I understand that the sentences passed in that case are the subject of an appeal to the Supreme Court in Suva.

I fully concur in the learned magistrate's comments that house holders must be protected and that the appellant struck/fear into many house-holders in Lautoka. However, I am inclined to the view that a total of 9 years is too severe in this case where the accused had pleaded guilty to all the charges. I wish to make it quite clear that I am in no way concerning myself with the appellant's recent convictions in Suva for which he has received an extra 3 years.

I note that on count IV the appellant received 9 months imprisonment whereas the other counts carry 2 years or 3 years varying with the value of the property stolen. In count IV the value was $1.00; however, I think the property stolen would have amounted to more than $1.00 had there been anything which sufficiently attracted the appellant. Value is only one factor in assessing sentence especially where the crime is of a very serious nature such as house-breaking. I enhance the sentence on count IV to 18 months but I do confirm the sentences on the other counts.

In my view a total of 7 ¹/₂ years imprisonment would have been adequate and accordingly I mend the learned magistrate's mode of accumulating the sentences by substituting for his order that the sentences on counts 1, 6 and 4 should be consecutive and those on the remaining counts concurrent thereto and to each other giving a total of 7 ¹/₂ years.

The appellant's activities in Suva were at least as terrifying and as numerous as in Lautoka. The course I have adopted indicates that I have in no way at all taken into account the appellant's activities in Suva which will no doubt be considered, if there is an appeal, in the light of the foregoing sentences.

Sgd. (J.T. Williams)
JUDGE

LAUTOKA
24th August, 1979