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State v Fabiano [2015] FJMC 128; Nasinu Criminal Case 137.2014 (21 April 2015)

IN THE MAGISTRATE'S COURT AT NASINU

(Extended criminal jurisdiction of the High Court of Suva)

Criminal Case No: HAC 49/2014
Nasinu Criminal Case No. 137/2014

STATE

-v-

JOSES FABIANO
SEKOVE CAMA
NIKOLA VUNIWAI
JOSUA CAMA

State Counsel Ms. Elo for the prosecution
The accused present and appeared in person

SENTENCE

1. You JOSES FABIANO, SEKOVE CAMA, NIKOLA VUNIWAI, JOSUA CAMA, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

FIRST COUNT

AGGRAVATED BURGLARY: Contrary to Section 313(1)(a) of the Crimes Decree No. 44 of 2009.

JOSES FABIANO, SEKOVE CAMA, NIKOLA VUNIWAI and JOSUA CAMA between 1.00pm and 6.00pm on the 28th day of January 2014 at Lot 13 Buabua Place, Nakasi, Nasinu in the Central Division entered into the house of Josefa Temo as trespasser with intention to steal.

SECOND COUNT

THEFT: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

JOSES FABIANO, SEKOVE CAMA, NIKOLA VUNIWAI and JOSUA CAMA between 1.00pm and 6.00pm on the 28th day of January 2014 at Lot 13 Buabua Place, Nakasi, Nasinu in the Central Division dishonestly appropriated 2 rice cookers, valued at $600.00 the property of Josefa Temo.

THIRD COUNT

AGGRAVATED BURGLARY: Contrary to Section 313(1)(a) of the Crimes Decree No. 44 of 2009.

JOSES FABIANO, SEKOVE CAMA and JOSUA CAMA between 6.00pm and 11.00pm on the 28th day of January 2014 at Lot 13 Buabua Place, Nakasi, and Nasinu in the Central Division entered into the house of Josefa Temo as trespasser with intention to steal.

FOURTH COUNT

JOSES FABIANO Between the 28th day of January 2014 and the 29th January 2014 at Buabua Place, Nakasi, Nasinu in the Central Division assaulted Detective Constable No. 3753 Alwin by pushing Detective Constable Alwin off a slope causing injuries to Detective Constable Alwin.

2. I am satisfied with your pleas are unequivocal and that you are understand the repercussion of your pleas.

3. I reproduce summary of facts that had already been admitted by you. The complainant in this matter is Josefa Temo (hereinafter referred to as the complainant, property owner of a double storey house at Lot 13 Buabua Road, Nakasi. The accuseds are:

(1) Joses Fabiano from Manuku Street, Nakasi

(2) Sekove Cama from Hansons Building, Kings Road

(3) Nikola Vuniwai from Hansons Building, Kings Road, 9 Miles; and

(4) Josua Salabogi from Hansons Building, Kings Road

Count 1 – Aggravated Burglary -On the 28th of January 2014 between 1.00 pm and 6.00 pm the four accuseds namely Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabogi went to the double storey house at Lot 13 Buabua Road, Nakas. At the double storey house at Lot 13 Buabua Road, Nakasi the accuseds Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabodi noticed that the house was vacant. The accuseds Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabogi with intention to commit theft entered into the double storey house as trespassers and whilst inside the house, Nikola Vuniwai in the presence of Joses Fabiano, Sekove Cama and Josua Salabogi took two rice cookers valued at $600.00 from inside the house. The accuseds Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabogi then left the house and all the accuseds went to Nikola Vuniwai's house.

Count 2 – Theft- On the 28th of January 2014 between 1.00 pm and 6.00 pm the four accuseds namely Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabogi whilst inside the double storey house at Lot 13 Buabua Road, Nakasi dishonestly without right appropriated two rice cookers valued at $600.00 from inside the house. The two rice cookers belonged to Josefa Temo (complainant0. The accuseds Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabogi with intention to permanently deprive Josefa Temo off the two rice cookers left the double storey house at Lot 13 Buabua Road taking the two rice cookers and they went to the accused Nikola Vuniwai's house. The two rice cookers were then recovered by Police.

Count 3 – Aggravated Burglary- On the 28th of January 2014 between 6.00 pm and 11.00 pm the three accuses namely Joses Fabiano, Sekove Cama and Josua Salabogi in possession of a black Canterbury bag went to the double storey house at Lot 13 Buabua Road, Nakasi. At the double storey house at Lot 13 Buabua Road, Nakasi the accuses, Joses Fabiano, Sekove Cama and Josua Salabogi had knowledge that the house was vacant. The accuses Joses Fabiano, Sekove Cama and Josua Salabogi with intention to commit theft entered into the double storey house as trespassers and whilst inside the house, the accuses started packing assorted items into the black Canterbury bag. Mr. Kitione Sikivou PW2 residing at Lot 10 Buabua Road, Nakasi felt suspicious that some boys were around his uncle Josefa Temo's house called the Nakasi Police. The Police Officers namely DC 3753 Alwin and PC 3372 Ame attended the scene.

Count 4 – Assaulting a Police Officer in due execution of his duty - The Police Officers namely DC 3753 Alwin and PC 3372 Ame attended to the report concerning Lot 13 Buabua Road, Nakasi. Both Police Officers entered the house and saw people moving inside the house. Joses Fabiano rant out of the house whilst Sekove Cama had underneath the bed. PC 3372 Ame arrested Sekove Cama whilst DC 3753 Alwin chased down Joses Fabiano. Joses Fabiano ran and hid behind a tree and when DC 3753 Alwin arrived and was looking for Joses Fabiano. The accused Joses Fabiano came from behind and pushed DC 3753 Alwin off a slope in a drain. DC 3753 Alwin suffered injuries as noted in the medical report.

(1) Scratch marks on the posterior aspect of right leg

(2) Tender swelling over the right ankle; and

(3) Tender swelling over the posterior aspect of left shoulder.

4. All accuses namely Joses Fabiano, Sekove Cama, Nikola Vuniwai and Josua Salabogi was cautioned interviewed and admitted fully to the above facts.

5. Sec 313 of crimes decree the offence of Aggravated burglary as follows.

"Sec: 313. — (1) A person commits an indictable offence if he or she —

(a) commits a burglary in company with one or more other persons; or
(b) commits a burglary, and at the time of the burglary, has an offensive weapon with him or her.

Penalty — Imprisonment for 17 years.

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of aggravated burglary.

(3) In this section "offensive weapon" includes;(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or (b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person."

6. Further Sec:291; 292 and 293 of Crimes Decree has described the offence of Theft as follows.

"Sec 291. — (1) A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property. Penalty — Imprisonment for 10 years.

(2) for the purposes of this Decree an offence against sub-section (1) is to be known as the offence of theft.

Special rules about the meaning of dishonest

Sec 292. — (1) for the purposes of this Division, a person's appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) Sub-section (1) does not apply if the person appropriating the property held it as trustee or personal representative.

(3) for the purposes of this Division, a person's appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

Appropriation of property

Sec 293. — (1) for the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property.

(2) Sub-section (1) applies to a case where a person obtains possession of property (innocently or not) without committing theft, and there is a later assumption of rights without consent by keeping or dealing with it as owner.

(3) for the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor's title, amount to an appropriation of the property."

7. The offence of Serious Assaults enunciated to Section 277 of the Crimes Decree and the Section 277 of the Crimes Decree No. 44 of 2009 reads,

"A person commits a summary offence if he or she-

(a)Assaults any person with intent to commit an indictable offence, or to resist or prevent the lawful apprehension or detention of himself, herself or of any other person for any office; or

(b) Assaults, resists or wilfully obstructs any Police Officer in the due execution of his or her duty, or any person acting in aid of such an officer, or

(c) Assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, business or manufacture or respecting any person concerned or employed by it; or

(d) Assaults, resists or obstructs any person- (i) Engaged in lawful execution of Court process, or in (ii) Making a lawful distress, with intent to rescue any property lawfully taken under such distress; or

(e) Assaults any person on account of any acts done by him or her in the execution of any duty imposed by law."

8. This court further satisfied the facts of this case present, included and proved every element of mentioned offences. The maximum penalty could be imposed to 1st And 3rd count is 17 years imprisonment and for the 2nd count it is 10 years imprisonment; for 4th count 5 years imprisonment .

9. Tariffs vary the gravity and nature of these offences. Considering the tariff of the offence of Aggravated Burglary which was discussed in Maharaj v The State (2011) FJHC 373; HAA 014.2011 and Tomasi Turuturuvesi v State (2002) AAA 86/02S is between 18 months and 3 years imprisonment.

10. Tariff for Theft was discussed in Niudamu v The State (2011) FJHC 661; HAA 028.2011 (20th October 2011) the tariff set was 2 – 9 months. In Chand v State (2007) FJHC 65 HAA30.2007. Mataitoga J affirming the tariff of Larceny is with range of 2 to 3 years.

11. State v Batiratu is a guideline judgment on sentencing offenders for the offence of 'serious assault' by His Lordship Chief Justice Gates. It was a Judgment on Revision against a sentence passed by the Magistrates Court. The accused was charged under Section 277(1)(b) of the Crimes Decree as the accused had assaulted a Police Officer with a punch to his left cheek within the Police compound whilst the officer was on duty. The accused pleaded guilty on the very first day he was produced before Court and later sentenced with a bound over for a period of 02 years without recording a conviction. His Lordship concluded that the range of tariff when sentencing for this offence should be between 6 – 9 months imprisonment. . His Lordship went on to say that:

" (46) "The sentence ordered of binding over, the discharge without conviction, was not within the range and type of sentencing suitable for the offence of assault on Police. The range is between 6 – 9 months imprisonment. The perversity of the offence is its violent challenge to lawful action taken by State servants, not in the extent of the assault. Of course the greater the violence and the injuries caused will lead to enhancement of sentence".

(50) Taking all mitigating matters into account, I arrive at a sentence in substitution at the lower end of the scale. A sentence of imprisonment is inevitable. It will be one of 4 months imprisonment [Section 15(1)(a). It is not appropriate that that sentence be suspended."

12. Based on your plea this court convicts 1, 2, 3 and 4 accuses as charged. This court for the 1st count of aggravated burglary pick 30 months starting point of sentence which will be applicable for all the accuses. For the 2nd count of theft pick 9 months which will applicable for all accuses as well. For the 3rd count of aggravated burglary pick 30 months starting point of sentence which will be applicable only for 1, 2 and 4 accuses. For the 4th count of serious assault 9 months starting point which will applicable only for 1 accused.

13. You pleaded guilty to the charge at the first instance. Therefore, 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 you are entitled for reduction of your sentence. Normally, exercising court's discretion, superior courts have followed 1/3 reduction for early plea. Therefore these courts deduct 10 moths out of sentence of 1 count and 3rd count. Now it is 20 months for both 1st and 3rd counts. Further this court deducts 3 months out of sentence of 2nd and 4th count. Now its 6 months for 2nd and 4th counts each.

14. Mitigations; 1 Accused: you said 23 years, single. Employed and earns $10-$15 per day. You do apologise. "I will not re-offend". You're a first offender. You added it was peer pressure. All the stolen items had been recovered. You entered to early plea and served time of this court.

2 Accused – 19 years, single, unemployed. You are a child of broken family. You do apologise. You stay with my uncle. You added it was peer pressure. You are a first offender with good previous good character.

3 Accused: you said 28 years, Married. Employed and earns $200 per week. You also do apologise. "I will not re-offend". You're a first offender. You added it was peer pressure. All the stolen items had been recovered. You seek chance to rehabilitate yourself. You are the sole brad winner of your family. You were fully cooperating with police. You have spent 28 days in remand.

4 Accused: you said 26 years, Married with 2 children. Employed and earns $150 per week. You also do apologise. You promised not to re-offend. You're a first offender. You added it was peer pressure. All the stolen items had been recovered. You seek chance to rehabilitate yourself. You are the sole brad winner of your family. You were fully cooperating with police. You have spent 28 days in remand.

15. In this scenario, should I impose you a custodial sentence or no custodial sentence in this case. The offence you have committed is very serious, grave crime. Therefore, I consider sentencing principles and decided cases in this regard.

16. I draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

17. All of the Accuses are young first offenders. This court is mindful of sentencing first offenders. The section 4 of Sentencing and Penalty Decree 2009 provides principle of sentencing the 1st offenders. Section 4(2) states; "In sentencing offenders a court must have regard to —

(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."

18. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are firfenders ought to beto be a very g mong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exed aler alternative sentences.

19. In Prasad v State [199>[1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders

20. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first oer is concernederned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the p interest or in the interest of the offender himself.