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State v Kuli [2017] FJMC 119; Criminal Case 617 of 2017 (3 October 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 617 /2017

STATE

V

ILAI KULI

For the Prosecution : WPC Tatila

The Accused: In person

Date of Sentence : 03^rd of October 2017

SENTENCE

1. ILAI KULI, you were charged with 4 counts of Burglary, contrary to section 312(1) of the Crimes Act No 44 of 2009(“Crimes Act”) and 04 counts of Theft ,contrary to section 291(1) of the Crimes Act.
   2. You pleaded guilty for this charge and also admitted the following summary of facts presented by the prosecution.

On the 23rd of September, 2017 Ilai Kuli (Accused), 25 years, Farmer of Navurevure Village, Waidina, Naitasiri did multiple unlawful entries and theft in the Waidina Secondary School Compound.

Count 1

On the above mentioned date, (Accused) unlawfully entered the Waidina Secondary School Science Laboratory with the intention to steal from therein.

Count 2

On the above mentioned date, (Accused) unlawfully entered the Waidina Secondary Laboratory and from therein stole a Compaq Brand Lap Top, valued at $1200.00 which was placed on the teachers table, the property of one Reshmi Lata Ram Kumar(PW-1), 28 years, School Teacher of Clifton Road, Valelevu.

Count 3

On the above mentioned date, (Accused) unlawfully entered the dwelling house of Veena Chand (PW-2), 52years, teacher of Waidina Secondary School with the intention to steal from therein.

Count 4

On the above mentioned date, (Accused) unlawfully entered the dwelling house of (PW-2) and from therein stole groceries amounting to $200.00.

Count 5

On the above mentioned date, (Accused) unlawfully entered the dwelling house of (PW-3), 26years, teacher of Waidina Secondary School with the intention to steal from therein.

Count 6

On the above mentioned date, (Accused) unlawfully entered the dwelling house of (PW-3) and from therein stole Pandora Charm valued at $1,200.00, Silver chain with cross pendant valued at $300.00, groceries amounting to $200.00, white diamond perfume valued at $80.00, ear rings valued at $50.00 and lotion valued at $20.00, to the total value of $1850.00.

Count 7

On the above mentioned date, (Accused) unlawfully entered the dwelling house of Takeifanga (PW-4), 37 years, teacher of Waidina Secondary School with the intention to steal from therein.

Count 8

On the above mentioned date, (Accused) unlawfully entered the dwelling house of (PW-4) and from therein stole hair trimmer valued at $150.00, 2 Addidas Rugby boots valued at $300.00, groceries amounting to $25.00, to the total value of $395.00.

The matter was reported at Nausori Police Station after which enquiries were made and (Accused) was arrested and interviewed under caution. (Accused) admitted to the allegation in Q16-36 of the caution interview. (Accused) was then charged for four counts of Burglary to section 312 of the crimes act number 44 of 2009 and four counts of Theft contrary to Section 291 of the Crimes Act number 44 of 2009 (Accused) will be appearing in custody at the Nausori Magistrate Court on the 02nd day of December, 2017.

Evidence to be Tendered

Interview Notes of Ilai Kuli

Charge Statement of Ilai Kuli

Compaq Laptop

Silver Chain with cross pendant

2 Addidas Rugby boot

3. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Burglary is 13 years imprisonment.
5. The tariff for this offence is between 18 months to 3 years ( Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002).
6. The maximum penalty for Theft is 10 years imprisonment.
7. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said :

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

8. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

9. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 24 months as the starting point for each count of Burglary which would be the base sentence in this case.
10. You committed home invasions in the nights. This I consider as an aggravating factor and add 08 months to reach 32 months imprisonment.
11. I consider following as mitigating factors :
    1. You are 25 years old ;
    2. Married with a child
    100. First offender ;
    4. Remorseful and promise not to re-offend;
    5. Some of the stolen items were recovered.
12. For all these mitigating factors I deduct 06 months to reach 26 months imprisonment.
13. For pleading guilty at the first available opportunity I deduct 1/3 to reach 18 months imprisonment.
14. Considering all the circumstances, I sentence you to 06 months imprisonment for each count of Theft and as these were committed in one transaction order to be concurrent with the sentences for Burglary.
15. In summary your final sentence is as follows :

1^st count (Burglary) – 18 months imprisonment

2^nd count (Theft) – 06 months imprisonment

3^rd count (Burglary) – 18 months imprisonment

4^th count (Theft) – 06 months imprisonment

5^th count (Burglary) – 18 months imprisonment

6^th count (Theft) – 06 months imprisonment

7^th count (Burglary) – 18 months imprisonment

8^th count (Theft) – 06 months imprisonment

16. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
17. ILAI KULI, in one single night you broke into 4 homes in Nausori and stole items from their owners. In my view even though you are a young and a first offender, you have demonstrated clearly that you are danger to the society. It is the duty of the court to protect the public in this country and to fulfill that objective I sentenced you to 18 months imprisonment for this charge.
18. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate