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State v Tuimereke [2011] FJMC 19; CRC 71, 72,74.2010 (21 February 2011)

IN THE MAGISTRATE’S COURT AT NASINU

Criminal Case No: 71/2010
Criminal Case No: 72/2010
Criminal Case No: 74/2010

STATE

V

1] WAISAKE TUIMEREKE
2] KAMINIELI QASEVAKATINI TURAGALOALOA

Mr. Lisiate Fotofil- State Counsel for Prosecution (DPP office)
The accuseds present and appeared in person

SENTENCE

1] You, Waisake Tuimereke and Kaminieli Qasevakatini Turagaloaloa, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

2] Criminal Case No: 71/2010

Statement of Offence [a]

OFFICE BREAKING ENTERING AND LARCENY – Contrary to Section 300 [a] of the Penal Code, Act 17

Particulars of Offence [b]

WAISAKE TUIMEREKE and KAMINIELI QASEVAKATINI TURAGALOALOA, on the 3rd day of August, 2009 at Nasinu in the Central Division, broke and entered the office of KINGDOM TIMBER AND HARDWARE FIJI LTD and stole therein one orange and white colored stihl brand 14 inch chainsaw valued at $300.00, four moulding machine heads valued at $3200.00, a cash till with $80.00 cash, five plainer blades valued at $800.00 and to a total value of $4,380.00 the property of the said KINGDOM TIMBER AND HARDWARE FIJI LTD.

3] Criminal Case No: 72/2010

Statement of Offence [a]

ROBBERY WITH VIOLENCE – Contrary to Section 293 [1] of the Penal Code, Act 17

Particulars of Offence [b]

WAISAKE TUIMEREKE and KAMINIELI QASEVAKATINI TURAGALOALOA, on the 12th day of August, 2009 at Nasinu in the Central Division, robbed one SUBASHNI DEVI of Morris brand DVD deck valued at $4,139.00, a Alcatel mobile phone valued at $89.00, one Nokia mobile phone valued at $45.00, a Motorola mobile valued at $19.00, 3 phone charger valued at $45.00, one Canterbury black bag valued at $800.00, 9 carrot gold ring valued at $300.00, one pair gold ring valued at $85.00, one crystal bracelet valued at $110.00, two pair crystal ear ring valued at $39.00, one crystal beads chain valued at $60.00, one wrist watch Seiko brand valued at $60.00, seven pair gold bangles valued at $470.00, to the total value of $3,131.00 the property of SUBASHNI DEVI and immediately before such robbery did use personal violence on the said SUBASHNI DEVI.

4] Criminal Case No: 74/2010

Statement of Offence [a]

ROBBERY WITH VIOLENCE – Contrary to Section 293 [1] of the Penal Code, Act 17

Particulars of Offence [b]

WAISAKE TUIMEREKE and KAMINIELI QASEVAKATINI TURAGALOALOA, on the 29th day of August, 2009 at Nasinu in the Central Division, robbed one BAL RAM SINGH of $790.00 cash, one ball mall gold valued at $1,500.00, two gold mohar valued at $200.00, two gold bangles valued at $1,500.00, two gold ear rings valued at $200.00, a ACER brand laptop valued at $2,500.00, one dressing shoes valued at $400.00 and a canvas valued at $400.00 to the total value of $7,490.00, the property of BAL RAM SINGH and immediately before such robbery did use personal violence on the said BAL RAM SINGH

5] Facts you both have agreed in each case as follows;

5.1] Criminal Case No: 71/2010

The complainant, Mr. Steven Shiri Kissun is the Director of Kingdom Timber and Hardware Fiji Ltd. The company is located at Lot 1 Velau Drive, Kinoya and is fenced. At about 8am on 03.08.09 Mr. Kissun received a call from one of his employee’s that their company office had been broken into. Upon the information, Mr. Kissun personally made a visit to their office located at Lot 1 Velau Drive, Kinoya and noticed the following items missing, all to the total value of $4,380.00:

- a 14 inch orange and white covered chainsaw valued at $300.00
- 4 Moulding machine heads all valued at $3200.00
- Cash Till
- $80.00 cash inside stolen Cash Till
- 5 Pinner Blades

Mr. Kissun also found that the back door to the office (Kingdom Timber and Hardware Fiji Ltd) was forced open.

You both were arrested by Police. You both confessed to the offence. None of the items stolen was recovered.

5.2] Criminal Case No: 72/2010

The victim, Ms. Subashni Devi d/o Deo Narayan (aged 36 years) resides at Lot 21 Kinoya Road, Kinoya with her 2 daughters. On 13.08.09 at about 3am when at her residence, Ms. Devi was awakened by someone hitting her hand when she lay on her bed. Ms. Devi awoke to find 2 Fijian boys who she described as being in their early twenties standing beside her bedside. Mrs. Devi’s 2 daughters were also in the bedroom at that time. The youths gained entry into the house by removing the kitchen window louver blades.

The victim was threatened if she refused, they will hurt her daughters. Therefore Complainant did not resist from thereon. Mr. Karan, the taxi driver who transported your stolen items was given a Morris DVD player as the taxi fare. Mr. Karan voluntarily handed over the DVD deck to Police as evidence which was later identified by Ms. Devi to be her belonging when she called into the Valelevu Police Station on 16.09.09.

The following items were then taken by you from the house of Ms. Devi:

- $100 cash
- A Morris DVD Player valued at $130
- A Mangal Sutra Chan valued at $900
- A Gold Chan initialed “Shiri” valued at $800
- A 9 Carat Gold Ring valued at $300
- A Pair of Gold Earrings valued at $85
- A 9 Carat Gold Chain valued at $110
- A Crystal Bead Chain valued at $60
- 2 Pairs of Crystal Earrings valued at $40
- A Pair of Crystal Bracelet valued at $39
- A Seiko Ladies Wrist Watch valued at $760
- A Black Alcatel Mobile Phone valued at $89
- A Nokia Mobile Phone valued at $45
- A Motorola Phone valued at $19
- 3 Phone Charges valued at $45
- 7 Pairs 1 Carat Gold Bangles valued at $70
- A Black colored Canterbury Traveling Bag valued at $139
- A Bunch of Keys

In your caution interview, you both voluntarily admitted the offence and confessed. Only Morris DVD deck has been recovered.

5.3] Criminal Case No: 74/2010

On 29.08.09 at about 3am Mr. Bal Ram Singh s/o Ishwar Singh (68 years old at the time) was asleep at his home at Lot 15 Vesivesi Road, Kinoya together with his wife and son when he awoke to the choking sound of his wife. Mr. Bal Ram awoke to see 2 Fijian men dressed in shorts, t/shirts with canvas inside his bedroom whereby one of them who had a fair complexion and his hand over the throat of his wife namely Bimla Wati d/o Raghu Singh (65 years old at the time). On his other hand, this fair man held a cane knife and he swung the cane knife at Mr. Bal Ram Singh hitting Mr. Singh on the left side of his head.
The other Fijian man inside the bedroom held a pinch bar and he hit Mr. Singh on the forehead with it. The person who held the pinch bar was Mr. Waisake Tuimereke (1st Accused). Later, Mr. Bal Ram Singh was admitted to the CWM Hospital for 5 days because of the injuries he sustained during the robbery. He now suffers from partial blindness (left eye) and deafness (left ear) as a result of being hit on the head with the pinch bar.
After Mr. Singh was hit on the forehead with the pinch bar, the robbers ( You ) took the following:

- 2 GOLD Chains valued at $1500
- 2 GOLD Mohar valued at $200
- 2 GOLD Bangles valued at $1500
- 2 GOLD Earrings valued at $2000
- Dressing Shoes valued at $400
- Canvas valued at $400
- Acer Laptop valued at $4300
- Passport of Arvind Singh valued at $77

Police only recovered the Acer Laptop stolen and it has been returned to Mr. Bal Ram Singh.
The admission made by both accused in their caution interview was freely and voluntarily given.

6] Maximum penalty could be imposed these types of offences as follows;

6.1] OFFICE BREAKING ENTERING AND LARCENY

“300. Any person who-

(a) breaks and enters any dwelling-house, or any building within the curtilage thereof and occupied therewith, or any school-house, shop, warehouse, counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to Her Majesty, or to any Government department, or to any municipal or other public authority, and commits any felony therein; or

(b) breaks out of the same, having committed any felony therein,

is guilty of a felony, and is liable to imprisonment for fourteen years.”

6.2] ROBBERY WITH VIOLENCE

“293.-(1) Any person who-

(a) being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person; or

(b) robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person,

is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment.”

7] Following tariffs have considered in decided cases for above offences;

7.1] In Tomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002 Her Ladyship Justice Shameem said that “ The tariff for house breaking entering and larceny is between 18 months to 3 years...”

7.2] In Regina v Chandar Sen Kumar [1979] SC HAA 62/79L 7 November 1979 His Lordship Dyke J. Mentioned “ As a rule offences of burglary, house breaking, shop breaking, etc... will attract custodial sentences of varying degrees of severity.”

7.3] In Manoa Baleinakeba v State [2010] HAA 8/10S 16 June 2010 His Lordship Madigan J held that; given the jurisdictional restraints from MCs, the proper tariff there now should be 7 to 10 years.
7.4] In Anare Buresalei v State [2010] HAA 23/10S 13 August 2010 His Lordship Temo J. Held that unprovoked attack on innocent V for refusal to give accused money, punching his nose, forcefully stealing V’s wallet, $220 cash and Alcatal mobile phone, is not harsh and excessive but below the tariff.

Aggravating Factors of the offences

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

- Felonious intention to commit thefts and robbery

-used force and weapons on the victims

- joint enterprise with co-accused

- Caused serious injuries to the victim, (In Criminal Case No: 74/2010, the victim, Mr. Bal Ram was partially blinded and deafen.)

-total values of property stolen/ robbed in these three cases are $15001

Mitigating Factors

9.1]. 1 Accused: 1 Accused in your mitigation, you said that you are 22 years old, single and still in remand. You were allowed mitigating through your uncle. He read over the mitigation and copy of this mitigation has handed over to this court. In your written mitigation, you said that you are an orphan and your father left you since birth and mother went overseas when you reached 7 years. Till 2006 you were with your uncle Waisake Tuimereke (Snr). When he moved to in laws you were with grandmother and due to peer pressure you fell into trouble and peril. Your uncle asked mercy and forgiveness considering the young age, your family background. He tendered apologies to the victims.

9.2] 2 Accused: in your mitigation you said that your 23 years old. You are a serving prisoner. Currently you are serving 8 years imprisonment. The copy of that sentencing judgement is given to this court by the prosecution. You have been convicted for 9 similar types of cases. You asked con current sentence for these offences. You tendered apologies to the victims. You told that you were raised up by grandparents since 7 months old. You asked court’s forgiveness and leniency.

10] I drew my attention to your mitigation. Court is mindful of your mitigations. Court is regretted by your unfortunate personal circumstances where you both were abandoned by parents in tender ages. But you committed grave crimes and it attracts deterrent sentence. As legal maxims say “Ignorantia legis neminen exusat- Ignorance of law is excuse nobody” or Ignorantia facti excusat; ingnorantia juris non excusat- Ignorance of fact is excuse, but ignorance of law is no excuse”. You both have done series of offences without caring law of the country. You used weapons and force and innocent people suffered by your criminal acts. It is to be noted that your individual rights supersede innocent public’s rights. Courts are duty bound to safeguard their rights as well. Court notes that you both are young offenders as this offences committed in same period of time (2007 to 2009).

11] Now I turn to the Sentencing Principles which enunciate in new Decree.

11.1] The section 4(1) of the sentencing and penalties Decree 2009 sets out the following guidelines for sentencing, may be imposed by a court;

a) To punish offenders to an extent and in manner which is just in all the circumstances

b) To protect the community from offenders

c) To deter offenders or other persons from committing offences of the same or similar nature

d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated

e) To signify that the court and the community denounce the commission of such offences

f) Any combination of these purposes

11.2] Further Section 4(2) articulates the matters which the court must have concerned to when sentencing an offender. Accordingly the following factors have to be taken into consideration;

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

12] His Lordship Justice Goundar considered carefully the Section 4 (2) of the Decree said in State v Mataisai Bulivou Susu [2010] FJHC 226 that:

"The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity"

7. Most of the above factors are patent in these offences. Considering all above factors you both attract custodial sentence with severity. But I start with lower tariff as you both young offenders and allow you to correct yourselves and have a peaceful, crimeless future.

13.1] In Criminal Case No: 71/2010, I select 2 years imprisonment as starting point. I will add 1 year for the aggravating factors. I will reduce the sentence by 1 year for your early plea the time you spend in remand prison and other mitigation. Your sentence is 2 years imprisonment.

13.2] In Criminal Case No: 72/2010, I select 7 years as starting point. I will add 1 year for the aggravating factors. I will reduce the sentence by 1 year for your early plea the time you spend in remand prison and other mitigation. Your sentence is 7 years imprisonment.

13.3] In Criminal Case No: 74/2010, I select 8 years as starting point. I will add 1 year for the aggravating factors as victim was partially blinded and deafen. I will reduce the sentence by 1 year for your early plea, the time you spend in remand prison and other mitigation. Your sentence is 8 years imprisonment.

14] All these sentences will run concurrently. The Second accused is currently serving and this sentence should run concurrently to the previous sentence as well. Both accused are eligible for parole after 6 years.

15] You, Waisake Tuimereke and Kaminieli Qasevakatini Turagaloaloa, are sentenced to

Criminal Case No: 71/2010: 2 years imprisonment

Criminal Case No: 72/2010: 7 years imprisonment

Criminal Case No: 74/2010: 8 years imprisonment

16]. 28 days to appeal.

On 21st February 2011 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate