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State v Sami [2010] FJMC 122; Criminal Case 328 of 2009 (8 October 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 328/09, 400/09 and 396/10

BETWEEN

THE STATE

AND

KUMAL KAMLESH SAMI

SENTENCE

1. You, Kumal Kamlesh Samy are to be sentenced upon pleading guilty in case No 328/09, 400/09 and Case No 396/10. The counts you pleaded guilty are as follows;
   

Case No 328/09

1st Count - Burglary contrary to Section 299(a) of the Penal Code.

2nd Count- Larceny in a dwelling house of property to a value amounting to not less than ten dollars contrary to Section 270 of the Penal Code.

Case No 400/09

1st Count - Burglary contrary to Section 299(a) of the Penal Code.

2nd Count- Larceny in a dwelling house of property to a value amounting to not less than ten dollars contrary to Section 270 of the Penal Code.

Case No 396/10

1st Count – Aggravated burglary to section 313(1)(a) of the Crimes Decree

2nt count – Theft contrary to Section 291(1) of the Crimes Decree

2. The maximum punishments prescribed for those offences and the tariffs for the offences are as follows;
   

Burglary: - Imprisonment for life; tariff 18 months to 3 years

Larceny:- !4 years imprisonment; tariff 18 months to 3 years

Aggravated burglary:-17 years imprisonment; tariff 18 months to 3 years

Theft: - Imprisonment for 10 years; tariff 18 months to 3 years.

3. In this case I pick my starting point for the offences of burglary and larceny in Case no 328/09 and 400/09 as 18 months. I pick my starting point for aggravated robbery and for theft as 2 years.
   
4. It was revealed in Case No 328/09 that you with four others committed the offences of burglary and larceny. On the 10th July 2009 you planned the house breaking with the other persons at your house. Later you entered the compound of the complainant by cutting the fence. One person entered the house by removing louvre blades and opened the door for you and the others to enter. You with the others stole two mobile phones, a gents ring, a wrist watch, DVD deck and 50 dollars cash all to the total value of 1564 dollars. The complainant woke up when he heard the noise and you with the others fled the scene. Later you were arrested by the police and you admitted the commission of the offence. Only the DVD deck and a wrist watch were recovered.
   
5. In Case No 400/09, you broke into the complainant's house between 3 am and 4 am of 11th July 2009. It appears that you committed this offence after the commission of the offences in the previous case. The complainant and his family were sleeping when you and the others entered in to their house by removing the hurricane shutters and the louvre blades. Items worth of 6089 dollars were stolen by you and the others. Only a part of the stolen items were recovered.
   
6. According to the summary of facts of the case no 396/10, you on the 3rd July 2010 with others broke in to the office of the Marsh McLennans Ltd. You and the others stole items all to the value of 9747.50 dollars. You admitted the offence to the police and no recoveries were made.
   
7. I observed the following aggravating features in these cases.
   
   1. You committed these offences being a member of gangs of men
      
   2. A substantial amount worth of property is stolen.
      
   100. No recoveries were made in Case No 396/10 and only a part of the stolen property was recovered in case no 328/09 and 400/09.
        
   4. You committed the offences in case No 396/10 whilst you were on bail.
      
   5. The prevalence of this kind of offences in the society.
      
8. For the aggravating circumstances I enhance the sentences for the first and the second counts of Case No 328/09 and 400/09 by 6 months and I enhance each counts of Case No 396/10 by 12 months.
   
9. You tendered a written mitigation and in that you said that you are 18 years old and a first offender. You said that you lived with your grandparents and if you are sentenced to prison there is no one to look after them. You said you wanted money and that's why you took part in commission of crimes. You said that you learnt a lesson and you were in remand for more than 2 months. You asked for forgiveness and promised that you will not re offend.
   
10. Although you said you are a first offender you admitted that you have two previous convictions. You committed the offences in Case No 396/10 whilst you were on a suspended sentence.
    
11. However now it appears that you are remorseful of your actions. You admitted the offences in your caution interview and it appears that you were cooperative with the police. You pleaded guilty saving the time of this court.
    
12. For the mitigatory circumstances of this case I reduce the sentences of all the counts by 6 months.
    
13. You were in remand since 16th July 2010. I decide to deduct three months from each sentence having taken into consideration the time you were in remand.
    
14. Accordingly I impose the sentences in the following manner;
    

Case No 328/09

First Count- 18 months imprisonment

Second Count- 18 months imprisonment

Case No 400/09

First Count- 18 months imprisonment

Second Count- 18 months imprisonment

Case No 396/10

First Count- 2 years and 6 months

Second Count- 2 years and 6 months

15. The court is mindful that you are still at your very young age and you should be given an opportunity to correct yourself. Therefore I order all the sentences to run concurrently and I decide not to activate the suspended sentence imposed on you in a previous case.
    
16. Hence you should serve a total sentence of 2 years and 6 months.
    
17. The court has a duty to leave some room for the offenders to reap fruits of genuine and effective rehabilitation. Further the court has to promote rehabilitation and correction of young offenders like you. Thus I order that you are eligible for parole after 12 months.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate

Lautoka
08th October 2010