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State v Veresoma [2015] FJMC 84; Criminal Case 638.2015 (15 July 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No: 638/15

STATE

V

PETERO VERESOMA

For Prosecution: WPC Priti P.
For the accused: In person

SENTENCE

1. You, PeteroVeresomaare here, to be sentenced on admission of guilt on your own accord for the offences of burglary; theft and damaging property Contrary to 212(1); 291(1) and section 369 of crimes decree 44 of 2009 respectively.

Petero Veresomaon the 22nd day of March 2015 at Lami in the Central Division entered into the dwelling house of Sereana Shaw as a trespasser, with intent to steal 1 x Forme mobile phone therein and dishonestly appropriated (stole) 1 x Forme mobile phone valued at $100.00 the property of said Sereana Shaw. And you wilfully and unlawfully damaged 6 x louver blades valued at $15.00 the property of Taina Shaw.

2. You pleaded guilty for the said charge on 8/4/2015 before this court with your own free will. This court is satisfied with your plea is unequivocal and that you understand the repercussion of your plea.

3.The summary of facts are, On 22nd day of March 2015 at about 4.20am at the Nukuwatu Settlement, LamiSereana Shaw A1, 36 years, unemployed was awake and lying in bed when she saw an i-Taukei male enter her house though the open front door and approached her bedroom.On the above date, time and place Sereana Shaw A1, 36 years, unemployed was still in bed with her Forme mobile phone valued at $100.00 beside her on her bed.The intruder entered A1's room and lifted the mosquito net and stole A1's mobile in the process.A1 yelled out and followed the intruder out from her room into her aunt's room. Taina Shaw A2, 52 years old, unemployed.On the above date, time and place the intruder ran out from Sereana Shaw A1, 36 years, unemployed, bedroom and into Taina Shaw A2, 54 years old, unemployed, bedroom which was facing the main road.The intruder stood on top of a table near the stove gas and forced his way out through the window breaking 6 louver blades valued at $15.00 in the process.Whilst B'1 jumped out of the window, he dropped A1's mobile phone on the ground which was later recovered by A1. B1 ran towards the back of the compound and realised that he had gone the wrong way so he tried to find his way out. A1's family members were alerted by then and they ran out and managed to apprehend the intruder whilst he was still in the compound. Whilst arresting the intruder, they identified him as PeteroVeresoma B1, 33 years old, unemployed of LamiVillage.The matter was reported to Lami Police Station and B1 was arrested and he smelt of liquor and was staggering when brought into the Station.B1 was later interviewed under caution admitted allegation of Count 1 and 3 but de3nied the allegation of Count 2.B1 was formally charged for 1 x Count of Burglary: Contrary to Section 312 of the Crimes Decree No. 44 of 2009, 1 x Count of Theft, Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009 and 1 x Count of Damaging Property Contrary to Section 369 of the Crimes Decree No. 44 of 2009.B1 will be appearing in the Suva Magistrate Court in Police custody on 24/3/15.

4. Burglary --"Sec 312. — (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.

Penalty — Imprisonment for 13 years.

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

(3) A person commits an indictable offence (which is triable summarily) if he or she —

(a) enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(b) the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more.

Penalty — Imprisonment for 13 years."

"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."

"Sec--369. — (1) A person commits a summary offence if he or she wilfully and unlawfully destroys or damages any property.

Penalty — Imprisonment for 2 years,.........."

5. After legislating the Crimes Decree on 2009, the offence of 'Theft' stipulated in section 292 (1) prescribed a maximum penalty of 10 years imprisonment for the offence. InTomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender.

6. But the tariff established for the Penal Code offence of larceny, 02 – 9 months imprisonment continued to be in existence in most of the decisions such as state v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16th May 2013) by Justice Thurairaja, State v. Ratumaijoma [2012] FJHC 1007, (4th April 2012) by Justice Madigan and State v. Lal [2012] FJHC 1333; HAC 215.2011 (14th September 2012) by Justice Kumararatnum. However tariff of 2 – 3 years imprisonment was applied in Chand v. State [2010] FJHC 291, HAA 018.2010 (10th August 2010) by Justice Thurairaja by citing Chand v. State[2007] FJHC 65; HAA 20.3007 (11th October 2007).
7. Justice Temo in the case of State v. Koroinavosa [2013] FJHC 243; HAC 059(B).2010S (17th May 2013) identified the tariff to be from a suspended sentence to 3 years imprisonment. In the above context this court can identify the application of following tariffs 'for the offences of 'larceny' and 'theft' by the parallel courts under the old and new regimes.
Penal Code Tariffs (Larceny)
(a) 2 to 9 months imprisonment
(b) 2 to 3 years imprisonment
(c) 6 to 12 months imprisonment
Crimes Decree Tariff (Theft)
(a) 2 to 9 months imprisonment
(b) 2 to 3 years imprisonment
(c) Suspended sentence to 3 years imprisonment
8. You have been convicted for larceny or burglary for 20 times and for damaging property 4 times. This court considers this as Aggravating Factors for this case.

9. In mitigation, yousaid that you are 33 years of age, single,and farmer. Promise not to re-offend. You havefully co-operated with Police. You have been in remand from 24/03/2015.You said " I was under the influence of liquor. I have decide not to do any crime. i seek non-custodial sentence. i didn't know what I was doing"

10.In Sentencing and Penalty Decree 2009 Section 4(2) provides;"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."

11. Primary object of sentencing and consideration of non-custodial sentence is described in Section 15(3) of Sentencing And Penalties Decree 2009 No: 42 of 2009and various case authorities.

"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."

12. InPrasad v The State [1994] FJHC 132; Haa0032j.94s (30 September1994) S W Kepa J enunciated that the fact that Appellants are first offenders&#1ght to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all othternative sentences.

13. In this backdrop,drop, summary of facts, your early plea, your mitigation and the nature of offence, attract custodial sentence for you.

14. I convict you as charged for all 3 counts.

15. Therefore I pick 36 months for offence of theft and burglary and 12 months for the offence of damaging property as my starting points of sentence. For the early plea I reduced 1/3out of 1st; 2nd and 3rd imprisonments. Now your sentence is 2 years for 1and 2 count and 8 months for the 3rd count. . I will reduce further 4 months for the remand period you have spent until today. Now it is 1 year and 8 months for 1st and 2nd count and 4 months for 3rd count and you will serve it. These 3 sentences will run concurrently.

16. 28 days to appeal.

15thJuly 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate