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Tabeusi v State [2010] FJMC 144; Criminal Case 785 of 2010 (6 December 2010)

IN THE MAGISTRATE'S COURT OF FIJI
AT NADI

CRIMINAL CASE NO.785/10
No. 786/10
No. 801/10

VIKATORE TABEUSI

VS

THE STATE

Mr.Newal for prosecution
Accused in person
Sentence: December 06, 2010.

SENTENCE

CHARGE

FIRST COUNT

Statement of Offence [a]

BURGLARY:- Contrary to Section 312 (1) of the Crimes Decree No.44 of 2009.

Particulars of Offence [b]

VIKATORE TABEUSI between the 10th and 11th day May, 2010 at Nadi in the Western Division entered into the dwelling house of Dinesh Prasad as a trespasser with intent to steal.

SECOND COUNT

Statement of Offence [a]

THEFT: Contrary to Section 291 (1) of the Crimes Decree No.44 of 2009.

Particulars of Offence [b]

VIKATORE TABEUSI between the 10th and 11 day of May 2010 at Nadi in the Western Division, dishonestly appropriated cash of $500.00, 1x gold chain valued at $200.00, 1x gold earring valued at $89.00 and corona wrist watch valued at $70.00 all to the total value of $859.00 the property of Dinesh Prasad.

[1] VIKATORE TABEUSI this is your sentence.

[2] You were charged with one count of burglary and one count of Theft.

[3] You after electing your case to be tried in the Magistrate Court, pleaded guilty to the charges when the charges were read and explained to you and after you confirmed that you understood the charge.

[4] A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution handed up a copy of it to court.

[5] I have reviewed the facts against the particulars of the offences charged in this case, and I am satisfied that it supports the elements of the charges in the information laid against you by the prosecution.

[6] Therefore I convict you on both counts as charged.

Facts for Sentencing:

[7] i) For case No. 785/10: Between the 10th and 11th day of May 2010, 2230 hours to 0200 hours at Aralevu, Nadi you (Accused) 1), BROKE AND ENTERED INTO THE DWELLING HOUSE OF Dinesh Prasad and stole therein, cash of $500-00, 1 gold chain valued at 4200-00, 1 x gold ear ring valued at $89-00 and corona wrist watch valued at $70-00 all to the value of $859-00 the property of Dinesh Prasad.

ii) For case No. 786/10: Between the 10th and 11th day of May 2010, 1900 hours to 0530 hours at Aralevu, Nadi you (Accused) used the vehicle Registration No. AI 508, model Datsun 120 Y, colored light green, valued at $1,800-00 the property of Rakesh Chand. On the day in question the complainant parked his vehicle inside the compound. He had his dinner and went to sleep. On or about 11th May 2010 at about 0530 hours the complainant woke up and found out the car was missing from the place where he had parked the car. Later it was abandoned at Togo Lavusa,Nadi using it for transport after you breaking into the complainant's neighbour's house.

iii) For case No. 801/10: Between the 2nd and 3rd day of April 2010, 2330 hours to 0700 hours at Nalovo, Nadi, you (Accused) broke into the dwelling house of Yangamma Naicker, farmer of Nalovo, Nadi and stole the assorted food valued at $13-00 also broke into the dwelling house of Bal Krishna aged 57 years, Farmer of Nalovo, Nadi and stole therein 1 x kg of powdered grog valued at $35-00, cash of $12-00 from the wardrobe, jewelleries box valued at $10-00 containing cash $10-00, I x Nokia mobile phone coloured black, model BL-5CA valued at $40-00 and also broke into the dwelling house of Anand Vijay Kumar Archari), aged 50 years, Farmer of Nalovo, Nadi and stole therein cash of $15-00 and after such robbery unlawfully used the vehicle Registration Number EO 644, model K 70 coloured white valued at $5,000-00, all to the total value of $5,135-00.

Aggravating Factors:

[8] i. You invaded dwelling house of the victim by night;
ii. You caused loss of property worth of $859.00 to the complainant;
iii. You violated the privacy of the victim's family by home invasion;
iv. Total lack of respect towards the victim's property and personal enjoyment of property rights;
v. You have 110 previous convictions ranging from Drinking Liquor in a Public Place to burglary.

Mitigating Factors:

[9] i. You are 48 years old single;
ii. You are a serving prisoner and sought leniency of the court;

The Sentence:

[10] The offence 'Burglary' carries a penalty of 13 years imprisonment according to section 291-(1) of the Crimes Decree No 2009.

[11] From a 5 year starting point, 5 1/2 years for critical role in ensuring the joint criminal enterprise of Burglary (s. 299 (a) & (b) and robbery with violence (s.293 (1) ) was successful, for a cowardly home invasion violating the privacy of a family, total lack of respect towards victims property and personal enjoyment of their rights in their own home; Yasa's co-accused stern punishment of 10 years to indicate public disapproval of conduct which strikes at a very heart of safety and security of the public: per Goundar, J in State v Sailosi Ralago Volivale [2009] HAC 30 (A) /05S 18 June 2009.

[12] Accordingly, in this case for count No.1, I select 05 years imprisonment as a starting point.

[13] In view of the above aggravating factors, I increase your sentence by another 1 year, and the period of imprisonment is now 6 years.

[14] I observe that an accused who plead guilty in the first available instance is entitled for a 1/3 reduction of the term of imprisonment. (Akili Vilimone v State, Cr. App. HAA 131/2007). But you did not tender your guilty plea in the first available instance. You have taken about 3 months to record your guilty plea. For your guilty plea I give you a deduction of 1 year from your term. Now your sentence is 5 years imprisonment.

[15] Your mitigating factors are not convincing hence you are not entitled to any credit for that. Though you have 110 previous convictions I have disregarded convictions that are 10 years old. However, between 2001 –2003 you have 65 convictions including 35 convictions 0n burglary.

For count No.2 (Theft):

[16] The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.

1. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)
2. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.
3. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.
   

[17] Accordingly, in this case for count No.2, I select 2 years imprisonment as a starting point.

[18] In view of the above aggravating factors, I increase your sentence by another 1 year, and the period of imprisonment is now 3 years.

[19] For your guilty plea, I give you a reduction of 1 year. Now you stand as convicted for 2 years on count No.2. Now your sentence is 7 years.

[20] In case No.786 you are charged with one count of theft for that you get 2 years hence your sentence has come to 09 years. I note that the offences charged in case No. 785 and case No. 786 had been committed on the same date and in the same series hence these sentences to run concurrently. Accordingly your total terms in both cases (785/10 & 786) will be 5 years.

[21] In case No.801 you are charge with 3 counts of burglary and 3 counts of theft. For that you get imprisonment as follows:

1st count-burglary: 5 years;
2nd count-theft: 2 years;
3rd count-burglary: 5years;
4th count-theft: 2 years;
5th count-burglary: 5 years;
6th count-theft: 2 years;

[22] The offences committed in case No. 801/10 appear to have been committed on the same date and in the same series hence the sentences in that case to run concurrently. Therefore your term in case No. 801/10 has been 5 years.

[23] In aggregate your term of imprisonment is 10 years. You must serve this 10 years term consecutive to other serving sentences.

[24] I am mindful of the fact that in terms of section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case, you must serve the full term of 10 years. You shall not be eligible for parole within that 10 year period.

[25] The duty cast upon this court is not only be fair as an accused as urged by you, but also to serve justice to the society at large as expressed by Winter J, in the case of Viliame Cavuilagi v State [Crim. App. HAA 0031 of 2004].

[26] Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate court to sentence otherwise. In your case I could not find any special circumstances that motivate me to sentence otherwise.

[27] The sentence might act as a deterrent to the offender and others who fall into pattern of semi-professional crime to support themselves.

[28] Society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreak havoc on the lives of law-abiding citizens.

[29] Offenders like you deserve punishment that fits the circumstances of the crime.

[30] Twenty eight (28) to appeal.

Order:

[31] VIKATORE TABEUSI, you are hereby sentenced to 10 YEARS imprisonment without a non-parole period. You must serve this term of imprisonment consecutive to any other serving sentences.

M H MOHAMED AJMEER
Resident Magistrate

At Nadi
Dated this 06th day of December, 2010.