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State v Kotobalavu [2012] FJMC 68; Criminal Case 576.2012 (1 May 2012)

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

Criminal Case No: 576/12

STATE

V

TUIMOALA KOTOBALAVU

Prosecution : Cpl Temesi, Police Prosecutor.
Accused : In person.

SENTENCE

1. You, Tuimoala Kotobalavu is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 23.04.2012, for committing the offence of 'Receiving' contrary to Section 306(1) of the Crimes Decree No 44 of2009.
   
2. You elected to represent yourself.
   
3. According to the Summary of Facts tendered by the Prosecution, this offence came in to light due to the vigilance of a 66 year old taxi driver.
   
4. On 09.04.2012 you were picked up by this taxi driver from Rodwell road in front of RB Patel supermarket. You have told him that you have some of your stuff to be collected from a water fountain in between Usher street and Scott street. Then you have collected those items and directed the taxi to drop you at Sunset Apartment. When he about to reach there you asked him to drop you at Town House Hotel.
   
5. You got down from the Town Hose Hotel but never went inside. Instead you went to the Sunset Apartments. This suspicious behaviour had led the taxi driver to give this information to a police officer.
   
6. When the police officers located your room in Sunset apartment you suspiciously tried to escape from the back door of the balcony. However you were arrested and assorted perfumes and some jerseys recovered from possession.
   
7. The actual complaint came-in later (11.04.2012) by a businessman from Nailuva road, Suva. His shop was broken into on a day between 07.04.2012 and 10.04.2012.
   
8. He identified all the items that were recovered from you as the items of his shop. Later you were interviewed under caution. But you denied the charges levelled against you. However the prosecution did not submit the value of the items recovered.
   
9. The aforesaid Summary of Facts was admitted by you on your own free will.
   
10. I have convicted you for the offence that you were charged with.
    
11. The offence of 'Receiving' under the Crimes Decree 2009 is similar to the offence of 'Receiving Stolen Property' of the Penal Code Act, Chap 17, which is now repealed.
    
12. According to Section 306 of the Crimes Decree 2009, the offence of 'Receiving' attracts a Maximum Sentence of 10 years imprisonment.
    
13. Tariff for the offence of receiving stolen property is 1 year to 3 years. It was held by His Lordship Justice Temo in State v Qarasaumaki [2011] FJHC 283; HAC096.2009S (23 May 2011) as "For "receiving stolen property", the maximum sentence is 14 years imprisonment. However, case precedent seemed to put the tariff between sentences of 1 year to 3 years imprisonment. If the value of the properties received is low, the sentence is often lower. It is otherwise, if the value of properties received is high: see Jesoni Ta v&#16v The State,&#1iminal inal Appeal No. HAA 0019 of 2003S, High Court, Suva; Ia Tuwere Turaga&#16> v e Sta>, Criminaiminal AppeaAppeal No. HAA 082002Sh Couuva;
    a; Tii Utovou v
    v&#160 The State, Criminal inal Appeal No. HAA 0010 of 2002S, High Court, Suva. Theal see on bove ofve offencefences will depend on the mitigating and aggravating factors".
    >
    
14. Her Ladyship Justice Shameem held that the offence of receiving stolen property calls for heavier sentences than larceny because theft depends on receivers to be profitable. (Turaga v State (2002) FJHC 176; HAA0082J.2002S (25 October 2002).
    
15. Accordingly, in this case, I select 01 year imprisonment as the starting point for your sentence.
    
16. Aggravating factors does not appear in your case.
    

MITIGATING FACTORS

17. In mitigation, you stated to Court that you are 27 years old; remorseful for the incident; sole breadwinner; married with two children; looking after your elderly mother.
    
18. I observe that you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 04 months of your term of imprisonment which now stands to 08 months. (Akili Vilimone v State, Cr. App. HAA 131/2007)
    
19. You are not a first offender; hence you are not entitled to the credit that is given to an offender with previous good character.
    
20. Therefore, your final term of imprisonment now stands at 08 months.
    
21. I am mindful of the fact that a sentence below two (02) years could be suspended in terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009,
    
22. On record, you have 13 previous convictions. Further I have noted that you were convicted on 06 occasions for property related offences.
    
23. Hence I do not see any compelling reason to suspend your sentence.
    
24. Accordingly I sentence, you Tuimoala Kotobalavu 08 months imprisonment for the offence committed under section 306 (1) of the Crimes Decree 2009.
    
25. You have Twenty eight (28) days to appeal against this order.
    

Pronounced in open court,

YOHAN LIYANAGE
Resident Magistrate

01st May 2012