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State v Tamanivalu [2010] FJMC 134; Juvenile Case 49.2009 (28 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Juvenile Case No: - 49/2009

STATE

V

TANIELA TAMANIVALU

For Prosecution: - P.C.Farook.
Accused: - Mrs. Karan R.

SENTENCE

1. You TANIELA TAMANIVALU, were found guilty by this court, for the offence of Damaging property, which is punishable under Section 324 (1) of the Penal Code Act 17, which entailed a punishment up to 2 years of imprisonment and for the offence of Larceny, which is punishable under Section 259 (1) and 262(1) of the Penal Code Act 17, thought the charge and the particulars of the offence stated that you are charged under section 259(2) and 262(2) of the penal code, I found that you have no previous convictions of felony. Wherefore I consider that you are charged under section 259 (1) and 262(1) of the penal code act 17, entailed a punishment up to 5 years of imprisonment.
   
style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='2' value="2">I found you guilty for the two offences consequent upon your "pleas of guilty' to the both charges on 21st of January 2010 after the Court was satisfied that you fully comprehended the legal effects and that your plea was voluntary and free from influence.

3. Summary of facts, as admitted by you before the court, revealed that the both offences were committed on 19th of November 2009 in a same transaction.
   
4. Further, the summery of facts revealed, that you broke the front door glass of the vehicle registration DJ 787, valued of the property of Mr. Luke Ratuvuki and stole therein a black computer lap top bag valued $ 25, and assorted documents valued $ 200, all to the total value of $ 220 when Mr. Luke Ratuvuki parked his vehicle at Reiwaqa Market car park and went to nearby post office and for his lunch.
   
5. This case involved an act of opportunity where you found the vehicle of the Mr. Luke Ratuvuki was parked unattended at the car park. Then you utilized the opportunity that you found and went into commit this crime. The aggravating factors are that the crime that you committed is a prevalent in the society. It is a compelling factor to consider that this kind of crime has turn law abiding citizen into prisoners in their own society.
   
6. At this point I direct myself to consider appropriate punishment on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree and the section 20, 30 and 32 of the Juvenile Act.
   
7. There is no set of tariff for the offense of Damaging Property (Gounder J in Tikomainiusiladi v State [2008] FJHC 18; HAA 134.2007 (15 February 2008). But in Navitalai v The State, Criminal Appeal No HAA0084 & 85 of 2002 S, a sentence of 2 years imprisonment for the criminal damage of a door valued at $ 250.00 was reduced to 6 months imprisonment on appeal. Furthermore in State v Naqa, Criminal Appeal No . HAA0023 of 2003 S, Shameem J upheld a term of 12 months imprisonment for the criminal damage of Monasavu Dam to a value of $ 10,000.00.
   
8. Tariff for simple larceny is 6 months to 12 months imprisonment. ( Kaloumaira v State ( 2008) FJHC 63), (Manasa Lesuma v State 2004, FJHC 490). It was held in Tikoitoga v State (2008, FJHC 44, HAM088.2007, 18th March 2008), that the tariff for larceny is 18 months to 3 years. Shameem J held in Vaniqi v State (2008, FJHC 348,HAA080.2008) that tariff for simple larceny with previous conviction of a felony to be over 9 months.
   
9. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and the Juvenile Act, and careful perusal of the summery of facts and mitigation submission of the learned counsel for the Juvenile, sufficiently directed me to determine an appropriate starting point for you. In line with above scing gung guidelines and principles, I select 4 Months imprisonment period as a starting point for the first count and 18 months imprisonment period as a startiint for the second count. .
   
10. The impact of the offence on the victim must be a disappointing and frustrating experience as he was suddenly found that his right of freedom and right of property was violated. The victim must be feeling his insecurity and vulnerability of increasing crime rate in the society.
    
11. You planned the act of theft upon the available opportunity and acted to fulfill your criminal intention. Your act of offence could have the effect of endangering innocent citizen. You demonstrated that you have no respect and regard for other's rights and freedom.
    
12. I now draw my attention to address the mitigatory factors in your favors.
    
    1. You are under the age of 17 at the time of committing this offence,
    2. Express remorsefulness and promise not to re offended,
    3. Seek another chance,
    4. Early plea,
    5. Time spend in boy center,
       
13. I now draw my attention to the social back ground report of you submitted by the Social Welfare officer. It clearly indicated, that you are habitually involve in crimes and trouble despite several attempts by the social welfare officers and leniency extended by the court towards you to changing your behaviors.
    
14. The Social welfare officer recommended that you are a threat to the community and your parent or guardians are not showing enough enthusiasm and dedication to involve in your reform process. The court itself tried to involve your parent constructively in reforming you. Unfortunately, their interest and enthusiasm shown to this effort is minimal due to the reason better known to them.
    
15. At this point, I highlighted the judicial responsibility of this court as a paramount guardian of the juvenile to consider the best interest of juvenile in punishment for the offence where he found guilty.
    
16. In view of aforementioned aggravating factors I increase 6 month, to reach the period of 10 months. In considering your early guilty plea and for other mitigatory factors, I reduce 4 months to reach the period of 6 months for the first count. In respect of second count, I increase 12 months to reach the period of 30 months. In considering your early guilty plea and for other mitigatory factors, I reduce 18 months to reach the period of one year. Now your sentence reaches to 6 months imprisonment period for the first count and one year imprisonment period for the second count. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.
    
17. At this point, I draw my attention to the finding of Nawana J in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) where his lordship Nawana J held "I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First der Syndrome' -160;- where peoplld tempt empt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. Thultanition is that thet the society is pervaded with crimes. Cou. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule".
18. Moreover, I am compelling to give a lot of weight to the recommenn of the Social Welfare report on you as they closely obserobserve your behaviors and your social back ground. I am of the view, that organize rehabilitation process will be able to reform you into a better citizen of this country by giving you vocational training, spiritual guidance and confidence with recognition in future.
    
19. In view of the abovementioned factors and findings of Nawana J in above paragraph, I do not find any compelling reason to suspend your sentence.
    
20. Accordingly, I sentence you six month imprisonment period for the offence of damaging property contrary to section 324 (1) of the Penal Code Act 17 and one year imprisonment period for the offence of Larceny contrary to section 259 and 262(1) of the Penal Code act 17 to be served concurrently in Nasinu Prison center with training facilities and further counseling, Further in term of section 18 (3) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 4 months in respect of second count.
    
21. 28 days to appeal.
    

On this 28th day of September 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.