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State v Tuiketei [2012] FJMC 298; Criminal Case 695.2012 (15 November 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI

CRIMINAL CASE NO: 695/12

STATE

V

ILISONI TUIKETEI

Mr. Savou for State
Accused in person
Date of Sentence: 15.11. 2012.

SENTENCE

1. You, ILISONI TUIKETEI, are charged with one count of burglary, contrary to section 312 (1) (a) of the Crimes Decree and one count of Theft contrary to section 291 (1) of the Crimes Decree and one count of robbery contrary to section 310 (1) (a) (i) of the Crimes Decree No.44 of 2009.
   
2. Burglary and Robbery are indictable offences which also summary offences pursuant to section 312 and 310 of the Crimes Decree. (When explained about election you elected the trial to be taken by this court). Initially you were charged with one count of burglary, one count of theft, one count of criminal intimidation and one count of aggravated robbery. Aggravated robbery is an indictable offence. However, the High Court by order dated 25th September 2012 had extended the jurisdiction of this court to hear and determine this case.
   
3. You had pleaded guilty to the charges and admitted summary of facts submitted by the prosecution. I have reviewed the facts against the particulars of the charges laid in the information by the prosecution against you, and I am satisfied that they support the essential ingredients of the charges. I therefore convict you as charged on all three counts.
   
4. The outline of facts admitted by you confirms that on 19 July 2012 at about 3.30pm you chased one Asish who was escaping from you and ran straight into Ramji's (complainant's) house followed by you. You entered the home of Ramji as a trespasser with intent to commit theft. While inside the home, you picked up Ramji's axe and challenged him to fight. Ramji refused to fight then you ran out of his house towards the road. You stole Ramji's axe valued at $30.00 and left his house.
   
5. On the same date and place at about 3.40pm you then armed with axe, went towards Bimlesh Prasad's residence where Salesh Prasad, the complainant, a cook of Korovuto was cooking sweets. Salesh noticed that you were severely intoxicated and was bothering a customer who came to buy sweets. Salesh and another tried to close the door when they saw you drunk with the axe. Before they could do so, you left the axe outside jumped into the kitchen through the front window, pushed the complainant off, grabbed a bag of sweets valued at $300.00 inside the kitchen and ran away with the bag of sweets.
   
6. A person commits an indictable offence (which is triable summarily) if he or she enters or remain in a building as a trespasser, with intent to commit theft of a particular item of property in the building, according to section 312 of the Crimes Decree.
   
7. A person commit an indictable offence (which is triable summarily) if he or she commit theft and-
   
   • (a) Immediately before committing theft, he or she-
   • (i) Uses force on another person; or ... (Section 310 (1) (a) (i) of the Crimes Decree).
     
8. Aggravating factors for burglary: home invasion, use of violence and committing offence while suspended sentence in operation; for theft: total lack of respect towards property right of the complainant and the law and for robbery: shock and trauma caused to the complainant, loss caused to the complainant (robbed $300.00 worth of sweet) and committing offence while suspended sentence in operation.
   
9. Guilty plea and remorse are your mitigations. You referred me to your family background in your mitigation. Also stated that you will not re-offend and supporting your elderly mother. You are 20 years old married with one daughter and seek apology and leniency.
   
10. You had admitted three live convictions in 2011. Your first conviction is recorded on 11.03.2011 for aggravated robbery where you were given 12 months imprisonment suspended for 3 years and other two convictions are recorded on 18.04.2011 for damaging property and theft where you were given 6 months imprisonment suspended for 2 years.
    
11. I cannot take your previous convictions as aggravating factors, however they may be relevant to set a higher starting point.
    
12. The offence of burglary carries a maximum penalty of imprisonment for 13 years.
    
13. Justice Paul Medical in the case of State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010) set 3 years starting point for burglary offences, stating which should be the accepted tariff for domestic burglary.
14. In your case for burglary I take 3 years imprisonment as my ing point. I add 9 months to reflect the above aggravating ting features. You pleaded guilty to the charges in first available instance hence you are entitled to full 1/3 discount for your guilty plea. Hence for you early guilty plea I deduct 15 months. You are not entitled to any discount for your previous good character in which you have three live convictions for similar charges. However, I discount another 6 months to reflect your mitigation. I discount further 4 months for the period spent in remand. Your final sentence for burglary is 20 months imprisonment.
    
15. The offence of theft carries a maximum penalty of 10 years imprisonment pursuant to section 291 of the Crimes Decree.
    
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. I therefore, taking all into my account, in your case I fix your sentence at 12 months imprisonment for the offence of theft.
    
18. The offence of robbery carries a maximum penalty of 15 years imprisonment under section 310 of the Crimes Decree.
    
19. 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.
    
20. I considering all in your case for robbery I would take 5 years imprisonment as my starting point. I add one year to reflect the aforesaid aggravating factors. I deduct 2 years to reflect your guilty plea. You are not entitled to any discount for your previous good character since you had admitted 3 live previous convictions. However, I discount another 6 months for your mitigation. I discount further 4 months for the period spent in remand. Your final sentence for burglary then is 3 years and 2 months imprisonment.
    
21. You must serve these sentences concurrently with each other in view of totality principle and the offences had been committed in the same series. Hence, in total you are to serve 3 years and 2 months imprisonment.
    
22. You had committed serious offences while three suspended sentences are still in operation. You deserve to be punished for the offences you had committed. The sentence must deter you and other likeminded.
    
23. 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 your case I fix 18 months as non-parole period. That means you are not entitled to parole before 18 months.
    
24. Since I have exercised extended jurisdiction of the High Court you have thirty (30) days to appeal to the Fiji Court of Appeal.
    

ORDER