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State v Mafutuna - Sentence [2012] FJMC 211; Criminal Case 1185.2012 (4 September 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1185/12

State

V

Micheal James Mafutuna

Prosecution : PC Pauliasi (Police Prosecution)
Accused : Present – in Person

SENTENCE

Micheal James Mafutuna this is your sentence for the charges of burglary and theft. You elected that this Court deals with the charges. You have pleaded guilty to the following charges on your own free will:

Count One

Statement of offence [a]

Burglary: contrary to Section 312 (1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)
Micheal James Mafutuna on the 24th day of August, 2012 at 7 Loa Street,Tamavua in the Central Division, broke and entered into the dwelling house of Timoci Tora with intent to commit theft.

Count Two

Statement of offence [a]
Theft: contrary to Section 291 (1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Micheal James Mafutuna on the 24th day of August, 2012 at 7 Loa Street,Tamavua in the at Central Division, dishonestly appropriated (stole) 1 x Macbook Laptop valued at $2,400.00, 1 x Dell XT Laptop valued $6,000.00, 2 x I Pad valued at 2,600.00, 1 x BOSE Speaker valued at $500.00, 1 x Kindle Booklet valued at $240.00, 2 x Olmypus digital waterproof valued at $1200.00, 1 x I TB Hard drive valued at $300.00, 1 x 650 GB External Hard Drive valued at $400.00, 1 x Bottle Red Label valued at $90.00, 1 x Green Label valued at $110.00, 1 x Malibu Rum valued at $90.00, and 1 x jack daniels whiskey with honey valued at $60.00 and 1 x Apple IPod valued at $150.00,all to the total value of $14,140.00, the property of Timoci Tora.

James Micheal Mafutuna, you have admitted the statement of facts as read out by the prosecutor on your own free will. You have mitigated and the Court has noted your mitigation.

The offence of burglary is provided for under Section 312 of the Crimes Decree which states that “(1) A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building. The Maximum Penalty prescribed is — Imprisonment for 13 years.

The maximum penalty for theft is imprisonment for 10 years.

The Sentencing and Penalties Decree 2009 is the relevant law for sentencing offenders and it makes comprehensive provision for the sentencing of persons for criminal offences and to the reform processes applicable to the prescription of penalties in the laws of Fiji and the determination and enforcement of a range of sentencing options imposed by the courts, and for other related purposes.

Section 4 of the Sentencing and Penalties Decree sets out the guidelines which a Court may consider when imposing sentences and dealing with offenders. This Court has considered the relevant sections of the Sentencing and Penalties Decree.

This Court notes the Tariffs for Burglary and Theft is noted as follows. In State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), Justice Madigan for the burglary offences t starting poig point of three years, which his Lordship stated should be the accepted tariff for domestic burglary. Whilestartingrting point for theft was taken as three years.

In State v Vinakasigaduwa [2011] FJHC 77; HAC156.2010 (18 February 2011), Justice Nawana stated that “the tariff for the offence ofglary', as founded on the basis of the provisions of the olhe old Penal Code, was 18 months to 3 years imprisonment (State v Mikaele Buliruarua) [2010] FJHC 384; (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).” Justice Nawana further stated that “in Buliruarua's case (supra), the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Burglary' under the Decree." and that he "would accordingly adopt the same tariffs for the offences of 'Burglary' and 'Theft' under the Decree in this case."
Noting from the two cases in the High Court (State v Tabeusi and State v Vinakasigaduwa) this Court notes that the tariff for burglary and theft is between 1 to4 years imprisonment.
Count One – Burglary
This Court takes a starting point of 4 years for the 1st Count which is Burglary. The reason for taking the higher end of the scale is that you are a repeat burglar. You have committed numerous offences of similar nature. This Court is mindful that you are not being sentenced for those now as you have done time for those offending. This Court wishes to by imposing stern sentence show that the Court will protect the public from people like you, who have less regard for others property and belongings and send out a message that people like you will be strictly dealt with by the Court. For the guilty plea on the 1st available opportunity the Court gives 9 months discount and further 3 months discount for your mitigation. Your sentence for the charge of Burglary is 3 years imprisonment.
Count Two – Theft
This Court takes a starting point of 4 years for the 2nd Count Of theft. The reason for taking the higher end of the scale is as I have stated above and further add that it seems that you do not seem to rehabilitate. For the guilty plea on the 1st available opportunity the Court gives 9 months discount and further 3 months discount for your mitigation. Your sentence for the charge of theft is 3 years imprisonment.
At this juncture I am minded to restate what Justice Madigan stated in State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), that "the Court cannot ignore its responsibility to the community to protect it from wanton crime. People should be free to enjoy their homes with impunity and without uninvited invasion and to maintain their possessions without fear of t The people in the urban aban areas of Fiji are presently terrified of robberies and unwanted invasions, and it is the Court's do attempt to alleviate those fears by keeping "career burglars" such as [you, the accused] sed] off the streets."
The frequency and the number of home invasions are increasing, people are living in fear and the only way to alleviate fear is to keep career burglars like you off the streets. The simple message is that home invaders will be imprisoned. This Court has noted in your mitigation that the reason you committed this offence was that you promised your child and others that you will take them to Hibiscus. You should have known well promising the children what your capacity is. You could have worked to fulfil the children's promises. You are a young man who can work and earn a decent living but you choose to live of others, which is by invading others, privacy and taking others belongings. You had taken expensive items of the complainant/victim. Hard working people need to have the protection of the Court from criminals like you.
As the burglary and theft offences were part and parcel of a single transaction this Court will impose a concurrent sentence.
Your sentence is summarised as follows:
(a) Count One - Burglary - 3 Year Imprisonment.
(b) Count Two – theft – 3 Years Imprisonment, to be serve concurrent to Count One.
You are not eligible to be released before the expiry of a term of imprisonment of 2 years 6 months.
You have 28 days to appeal this sentence in the High Court.

Chaitanya Lakshman

Resident Magistrate

4th September 2012