Court of Appeal
Criminal Appeal No. 2 of 1981
5th June, 1981
ALASTAIR BLAIR-KERR P.
P.T. GEORGES J.A.
J.A. SMITH J.A.

J U D G M E N T

During the night of 2nd/3rd October 1980, the appellant broke into a dwelling house and stole a Video Tape recorder with earphone valued at $2,300 and one Video cassette valued at $100. He was convicted of burglary and aggravated theft and sentenced to 10 years imprisonment on the burglary charge and 3 years imprisonment on the aggravated theft charge. The sentences were ordered to run concurrently with one another. He now appeals against convictions and sentence.

There was ample evidence to support the convictions and the appeal against convictions is dismissed.

As regards sentence, the appellant has four previous convictions. In July 1979 he was convicted of causing harm contrary to section 73 of the Criminal Code and fined $50 by the Magistrate. In December 1979 he was convicted of housebreaking and aggravated theft. The value of the articles stolen was $1,220. The case was dealt with by the magistrate who imposed a sentence of 3 months imprisonment on each charge, the sentences to run concurrently. Finally, in October 1980, the appellant was convicted of possession of dangerous drug (presumably opium) contrary to section 85 of the Dangerous Drugs Ordinance and fined $50 by the magistrate.

When passing sentence, the learned Chief Justice is recorded as saying:?

"The prisoner's character is questionable and his associates are persons of questionable character. He already has two previous conviction for dishonesty, one of a fairly serious matter when his sentence was lenient. The prisoner has now embarked on possession of drugs. The prisoner has had the opportunity of a good academic education and despite this has not made use of it. The increase in the stealing of Video Tape Recorders must be taken into account ?a small and easily portable instrument with a high value. The owner was deprived of his property which was disposed of for a pittance. That shows callousness. The Court takes that into consideration and has also to consider the protection of Society."

Having regard to this prevalence of this type of offence, we agi tirely that society must be protected and a deterrent sentence was called for; Nevertheless, we think a sentence of 10 years imprisonment is manifestly excessive having regard to all the circumstances. We therefore quash the sentence of 10 years imprisonment and in subkitutioh therefor, pass a sentence of 5 years imprisonment.

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