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State v Kamikamica [2011] FJHC 81; HAC156.2010 (21 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 156 0F 2010

BETWEEN

STATE
PROSECUTION

AND

MAIKA KAMIKAMICA
2nd ACCUSED

Counsel: Miss M Fong – Counsel for State
Accused in person
Date of Plea: 16th February, 2011
Date of Sentencing Submissions: 18th February, 2011
Date of Sentence: 21st February, 2011

SENTENCE

1. Maika Kamikamica, the 3rd Accused in the above case (the accused), stood charged along with two others namely, Maleli Vinakasigaduwa and Mohammed Ilias, for committing the offences of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) (a) and 291 (1) respectively of the Crimes Decree No 44 of 2009 (the Decree).
   
2. The accused pleaded guilty to the charges. Court, upon being satisfied that the plea in respect of each count was voluntary and free from duress or any influence, proceeded to convict the accused on the plea of guilt.
   
3. The offence of 'Aggravated Burglary', which is indictable, attracts a punishment of 17 year-term of imprisonment, while the summarily triable offence of 'Theft' mandates a punishment upto a 10 year-term of imprisonment under the Decree.
   
4. The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (State v Mikaele Buliruarua) [2010] FJHC 384; (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).
   
5. In Buliruarua's case (supra), the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Burglary' under the Decree.
   
6. I would accordingly adopt the same tariffs for the offences of 'Burglary' and 'Theft' under the Decree in this case.
   
7. Facts, as admitted by the accused, revealed that the accused along with the other two had left the shores of Lautoka in a boat owned by Ilias (the second accused) for fishing around 11.00 a.m. on 04.12.2010. They made their stop at the Resort in Bekana Island apparently to fill-up the boat with water. In the course of their stop-over, they got into the premises of the Bekana Island Resort and removed a brush-cutter, a radio, two tents and a towel, which subsequently became the subject matters of theft under count (2).
   
8. The Bekana Island Resort, which has been closed since 2008, was being looked after by two caretakers. Upon information given by Kini Tuipeleaki, one of the caretakers, the police apprehended the accused along with his two companions on 4th December, 2010 itself. Police recovered all stolen items from the possession of the accused and the other two co-accused.
   
9. There exists no evidence on the use of any force or any weapons of offence. There is also no evidence on any damage being caused to the property or injury or harm to any person. I, therefore, find no material to constitute any aggravating circumstances. The act of burglary in this case, instead, has crystallized into its aggravated form in view of the fact that the offence was committed by the accused whilst being a member of a group. The penal provisions under the Decree have provided for an enhanced punishment for such aggravation occasioned by group offending and; as such, this court does not require attaching any further weight to bolster-up aggravation.
   
10. The accused is only 18 years of age and unmarried. Court was informed that he was pursuing tertiary studies and it was during the vacation that he happened to get involved in the offences whilst on fishing. He has had no previous convictions or a record blemished with any offending. He pleads for forgiveness enabling him to get into the mainstream of the society again. Moreover, the accused repents over the crime committed and pledges that he would not reoffend.
    
11. There was no evidence on pre-planning of the offence. Instead, it appears that the accused, along with his two co-accused, were enticed to the commission of the offence by the circumstances that existed at the relevant point of time at the scene of crime, while they were setting-forth for fishing. While court is fully mindful of the fact that such temptation offers no legal justification for commission of the crime, it would, however, operate as a factor to mitigate the sentence.
    
12. In the circumstances, I consider it just to commence the sentence from the lower point of tariff being 18 months for the offence of 'Aggravated Burglary'. I am inclined to give substantial weight to the very early guilty plea, which reflects true remorse. Accordingly, I reduce 6 months for the plea of guilt and arrive at 12 month period of imprisonment. A reduction of 3 months is given considering that the accused is a first offender. Further discount of three months is given considering that the accused is still at the age of 18 years and engaged in studies. The ultimate sentence for the offence of burglary under count (1) is set as 6 month-imprisonment.
    
13. As regards the offence of 'Theft', I consider it just to commence the sentence from 18 month-imprisonment. I am inclined to give substantial weight to the very early guilty plea, which reflects true remorse. Accordingly, I reduce 6 months for the plea of guilt and arrive at 12 months period of imprisonment. A reduction of 3 months is given considering that the accused is a first offender. Further discount of three months is given considering that the accused is still at the age of 18 years and engaged in studies. The ultimate sentence for the offence of theft under count (2) is 6 month-imprisonment.
    
14. I have considered the desirability of imposing suspended sentences in this case in light of the facts as set-out above and the personal record of the accused.
    
15. Facts of the case, as shown above, do not reveal violent offending as such to fit into the criteria that warrant immediate custodial sentence. The case is clearly distinguishable from the dicta in State v Tilalevu [2010] FJHC 258 HAC 81 of 2010; 20.07.2010. I am, therefore, of the view that it would be appropriate to suspend the operation of each of the sentence as provided for under Section 26(1) of the Sentencing Decree for the accused to be able to pursue his studies and rehabilitate himself in an apt societal background. This conclusion is reached especially in light of the fact that offences in this case had not involved violence, physical injury to property or to any person.
    
16. I accordingly order that:
    
    • (i) That the accused be sentenced to 6 months imprisonment in respect of the offence of 'Burglary' punishable under Section 313 (1) (a) of the Decree.
      

The operation of the term of imprisonment is suspended for five (5) years from today.

(ii) That the accused be sentenced to 6 months imprisonment in respect of the offence of 'Theft' punishable under Section 291(1) of the Crimes Decree.

The operation of the term of imprisonment is suspended for five (5 ) years from today.

17. The purpose and the effect of the suspended terms are explained to the accused along with the consequences of their breach under Section 26 (3) of the Sentencing Decree. If an offence punishable with a term of imprisonment is committed within the operational period of the suspended sentence, the two suspended terms shall begin to run consecutively making a total of 12 month-imprisonment in addition to the sentence that the accused may get for the subsequent offence. The accused is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended sentences is an offence itself against Section 28 of the Sentencing Decree for which he could be arraigned and punished by court.
    

PRIYANTHA NAWANA

JUDGE
HIGH COURT, LAUTOKA