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State v Roqara [2012] FJHC 1428; HAC08.2012 (9 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 08 OF 2012

BETWEEN:

STATE

AND:

SOLOMONI ROQARA
[1st Accused]

ALIVERETI DRIU
[2nd Accused]

SAVENACA WAKAWAKA
[3rd Accused]

Counsel : Mr. T.Qalinauci for the State
Accused Persons in Person

Date of Sentence : 09th November 2012

SENTENCE

1. The 1st and 2nd Accused above named together with another person committed offences of Aggravated Burglary and Theft punishable under Section 313 (1)(a) and Section 291(1) of the Crimes Decrees respectively.
   
2. When the case was mentioned to take plea, both Accused persons pleaded guilty and admitted to the Summary of Facts submitted by the State.
3. According to the Summary of Facts these two Accused persons together with another person broke into Ken's shop Mart of Nakavu, Nadi and stolen Eighteen Thousand and Twenty Seven Dollars ($18,027.00) worth of items.
   
4. Originally all 3 persons pleaded guilty to the charge on 31st October 2012. State Counsel moved time till the following day to file the Summary of Facts. When the case mentioned on the next day I asked whether they are still maintaining their plea of guilty. 1st and 2nd Accused persons answered affirmatively, but the 3rd Accused moved Court to withdraw his plea. Further the 1st and 2nd Accused persons admitted to the Summary of Facts.
   
5. Being convinced with the plea of the 1st and 2nd Accused to be unequivocal I found both Accused persons guilty and convicted them as charged.
   
6. According to the Summary of Facts on the 29th March 2012 the Complainant Huong Zu Jin closed his shop Ken's Shop Mart situated at Nakavu, Nadi due to the floods on that area. He returned to his shop only on the 31st March 2012. There he had discovered his shop was broken and items worth of $18,027.00 was stolen. Among the items stolen assorted liquor worth of $4,157, cigarette worth of $6,348, recharge cards worth of $5462, groceries worth of $260 and cash $1,800 were included.
   

At the Police investigation it was found that 1st and 2nd Accused and another person was lavishly drinking and spending money on their own. Police had arrested them and recovered items worth of $42.10.
Both Accused persons admitted committing offences at caution interview and assisted the police on their investigations.

7 1st Accused Solomoni Roqara and 2nd Accused Alivereti Driu you stand convicted under Section 313(1) (a) and Section 291(1) of the Crimes Decree for committing offences of aggravated burglary and theft.

8. Section 313 (1) prescribes a maximum sentence of 17 years imprisonment.
   
9. Section 291 (1) of the Crimes Decree prescribes a maximum sentence of 10 years imprisonment.
   
10. Considering the tariff to the offence of Aggravated Burglary was discussed in Maharaj v The State (2011) FJHC; HAA 014.2011 and Tomasi Turuturuvesi v State (2002) AAA 86/02S according to these cases the tariff is between 18 months and 3 years imprisonment.
    
11. Tariff for Theft was discussed in Niudamu v The State (2011) FJHC 661; HAA 028.2011 (20th October 2011) the tariff set was 2 – 9 months. In Chand v State (2007) FJHC 65 HAA30.2007 Mataitoga J affirming the tariff of Larceny is with range of 2 to 3 years.
    
12. Considering law and the tariff I commence your sentence as follows:
    

(i) Aggravated Burglary – 2 years imprisonment
(ii) Theft – 12 months imprisonment.

13. Considering the aggravating factors
    
    1. You were acted in a group;
    2. Offence committed at the time of National Disaster;
    3. Out of $18027 worth of stolen items only $42.10 worth of items were recovered;
    4. You broke open a business place;
    5. You have burgled a shop that was closed for floods;
    6. Your act causes insecureness among the business community who provides a service to the society.
       

Considering above factors I increase your sentence by 6 months now your sentence stands as follows:

(i) Aggravated burglary 2 years and 6 months;
(ii) Theft 18 months.

14 Both offences were committed in the same course of transaction hence your both sentence will be implemented concurrently.

15. Mitigating Circumstance of 1st Accused
    
    • (i) You have pleaded guilty at a very early stage;
    • (ii) You are married and your wife is 3 months pregnant;
    • (iii) You claim you have to support your mother;
    • (iv) You claim you are remorseful;
    • (v) Period in remand.
      

Considering above circumstances I reduce your sentence by 12 months now your sentence is 18 months imprisonment.

16. Mitigating circumstance of the 2nd Accused
    
    • (a) You have pleaded guilty at very early stage;
    • (b) You are a 1st offender;
    • (c) You claim you are the sole breadwinner;
    • (d) You claim you seek forgiveness
    • (e) Period in remand.
      

Considering your circumstance I reduce your sentence by 18 months now your sentence is 12 months imprisonment.

17 Both Accused persons plead with Court to consider imposing a suspended sentence on them. I consider section 26(1) of the Sentencing & Penalties decree.

18 You have committed the offence at the time of National Disaster I am unable to consider your request fully. But considering your early plea, age and all other circumstances I order your sentence to be implemented as follows:

1st Accused Solomoni Roqara, you are sentenced to 18 months. You will be serving 9 months immediately and the balance of 9 months is suspended for a period of 2 years.

2nd Accused Alivereti Driu, you are sentenced to 12 months imprisonment. You will be serving 6 months immediately and the balance of 6 months is suspended for a period of 2 years.

19 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka
9th November 2012
Solicitors:

The Office of the Director of Public Prosecution for State
Accused Persons appeared in Person