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State v Rokotuivono [2010] FJMC 171; Criminal Case 1023.2010 (13 December 2010)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 1023 of 2010

STATE

V

SENIRUSI ROKOTUIVONO

For Prosecution: Sgt Volavola
For the accused: in person

SENTENCE

[1] You, Senirusi Rokotuivono, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

Burglary: Contrary to section 312(1) of the Crimes Decree No. 44 of 2009

Theft: Contrary to the section 291(1) of the Crimes Decree No.44 of 2009

Burglary is an indictable offence triable summarily and you elected Magistrate court. Initially, you pleaded not guilty to the charge and matter was set for Pre Trial Conference. On that day, you changed your former plea of not guilty and then pleaded guilty to the charge. I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I am further satisfied that all the ingredients as to the charges could be or have been proved beyond reasonable doubt against you, if trial proceeded. I convict you as charged.

[2] According to the facts, (which you have admitted), on 28-08-2010, you entered into the Victim- Waisea Finau's house by removing 6 planks of wood. The house was ransacked by you and you stole Acer Laptop valued at $ 500, Akita DVD player valued $ 99, orange Nike canvas valued $280, Adidas track shoes valued $ 430, Asics track shoes valued $360, Tony Hilfinger perfume valued $120, another perfume valued $ 100, external drive $ 90, alarm radio valued $ 120, Nike gym bag $ 70, Ladies watch valued $ 15, Mat valued $300, brown dressing shoe valued $ 70, 1 crate egg valued $4.50 and 5 pack Maggie Noodles valued 2.59 and total value of $ 2431.09 from the house of Waisea Finau(PW1). Two of those items were recovered and you admitted the offence in your caution interview.

[3] Under the Crimes Decree No 44 0f 2009,

Maximum penalty could be imposed for Burglary is 13 years.
Maximum penalty could be imposed for Theft is 10 years.

[4] In Tomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender. In William Prasad V State [2010] AAM 1/10 Ruling 12 February 2010 Byrne AP held that the tariff for simple larceny on first conviction is 2-9 months; on a second conviction, sentence in excess of 9 months and in cases of a large amount of money, 1 ½ years to 3 years. It was further held that "No error here in 1 year sentence for stealing van's stereo and amplifier worth $ 1799, later recovered from a pawn shop".

Aggravating Factors of the offence

[5] Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

-felonious intention

- damaged to the property

-house breaking entering

-committing theft

[6] You have six previous convictions. Four of them are similar nature of this offence. But I note, last one was committed in 2005.

[7] Considering value of property, I select 3 year imprisonment as starting point in respect of first offence. In respect of Theft, second count, I select 1 ½ years imprisonment as the starting point.

Mitigating Factors

[8] In mitigation, you said that you are 28 years old, single, staying in a village. You said you do not have resources of income. You just do farming. You asked court's forgiveness and promised not to re offend.

[9] You pleaded guilty for the charge at initial stages. Therefore, you are entitled for reduction of your sentence. I am giving the benefit of ⅓ as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007. Now your sentence is 2 years in respect of first offence and 1 year for second offence.

[10] It should be noted that you have 6 previous convictions. 4 previous convictions are similar nature of this offence. This court can not punish those offences since punishments have already been dealt with and served. But it appears to this court that you have tendency to do these type of offence again. Unfortunately I cannot name you as "Habitual offender" under the Sentencing and Penalty Decree 2009. Out of 6 previous you were given 4 custodial sentences. Yet again, you have committed this offence after 5 years duration of last offence. It shows that you have never learnt from your past and you are incorrigible. It seems to me, though ample chances have been given to you but you have failed to rehabilitate yourself.

[11] Hence, this court does not see any meritorious mitigation in your part. You said that you will not re offend. You must have said and sought leniency in previous six times as well. But you were unable to not to re offend. Then, how does this court believe it? As I mention in paragraph 3, the legislators' intention is very clear and offenders must be severely punished with for these kinds of offences for the sake of society.

[12] In balancing the sentencing principles, the court is normally gracious to young, first offenders and accuseds those who have saved court's resources and time. In addition court looks at victim's side and society wise. I believe that the primary aim of every sentence is the prevention of future crime. Where the offender is so hardened that rehabilitation is plainly impossible, the sentence may be designed to segregate the offender from society so that he will be unable to do any future harm. I hope this proposition should be adopted for every incorrigible who cannot reform and rehabilitate.

[13] For the above mention reasons and aggravating factors I increase one year for count one and six months for count two. Considering your mitigation, as I mention earlier, for you early plea I have given 1/3 reduction and other mitigation has no value in this case, but I have started in lower tariff rate considering those mitigating factors. Your actual sentence now is 4 ½ years imprisonment.

[14] Should I suspend this sentence? In Regina v Sione [2001] SBHC 16; HC-CRC 139 of 2000 Consolidated with 138 of 2000, 164 of 2000 & 035 of 2001 (28 March 2001) Justice Kabui went on saying
"I feel that a suspended sentence was not called for in this case. The Court placed no weight on the fact that the prisoner had re - offended and obviously had not learnt from the fact that he had just come out from prison as a result of committing the same offence in 1999. The Court however did say it had a duty to help and keep the prisoner out of trouble. This is clearly a subjective view rather than being a recognised sentencing practice. It was obvious that the Court was heavily influenced by the prisoner's guilty plea and the fact that the stolen property had been recovered. To impose a suspended sentence is an act of double leniency on the part of the Court. I would revoke the 6 months suspended sentence and reinstate 6 months imprisonment with immediate effect. I Order accordingly."

[15] Thus, re offenders does not get the benefit of suspending the sentence. I do not want to give double leniency in this matter as I started with lower tariff rate. Therefore, this court does not tend to suspend your sentence in this case. It should run consecutively and you are eligible for parole after 3 years. Therefore you are hereby sentenced to

Count 1: 3 years imprisonment
Count 2: 1 ½ years imprisonment

[16] 28 days to appeal. Copy of this sentence has been furnished to the accused in open court.

On 13th day of December 2010

Sumudu Premachandra
Resident Magistrate