Regina v Dau [1979] FJSC 36; Criminal Appeal No. 61 OF 1979 (16 November 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT IAUTOKA

APPELATE JURISDICTION
CRIMINAL APPEAL N0 61 of 1979

BETWEEN

REGINA
(Appellant)

AND

ANISI DAU
(Respondent)

Mr. D. Williams for the Appellant
Respondent appeared in person

JUDGMENT

The accused/respondent was charged with the offence of burglary and larceny contrary to sections 332(a) and 302(a) of the Penal Code and pleaded not guilty. However after evidence had been given by the complainant the accused changed his plea and was thereupon convicted of the offence as charged. He was sentenced to nine months imprisonment which was suspended conditionally for 2 years. The Crown now appeals against the sentence on the ground that it is manifestly inadequate.

I dealt with a similar case (although the offence was shop-breaking, not burglary) in Criminal Appeal No. 62 of 1979 where the same magistrate had passed a similar suspended sentence. Although in the circumstances of that case there were reasons why I declined to interfere with the exercise of the magistrate’s discretion in passing sentence. I did point out that for offences such as burglary a suspended sentence would normally be the exception rather than the rule. The seriousness of the offence itself, the prevalence of it in Fiji normally require a deterrent custodial sentence.

In the present case, apart from the fact that the accused is a first offender there are no circumstances such as to warrant a suspended sentence. The accused is 28 years old, he has a regular job and has no excuse whatever for committing this offence It was said that the accused had been drinking that night, but that is hardly a mitigating factor. He had the affrontery to try to sell back to the complainant the radio he had stolen off him. The fact that the stolen property was later recovered by the police is not a factor in the accused's favour.

In all the circumstance I set aside the sentence passed by the magistrate and in lieu substitute a sentence of 12 months imprisonment.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA
16th November, 1979.