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State v Tuiwaru [2018] FJMC 25; Criminal Case 140.2018 (13 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 140/2018

STATE

V

MESULAME TUIWARU

NEPOTE SOKOBALAVU WAQA

For the Prosecution : WPC Taitila

For the accused : Ms. S.Ali(LAC)

Date of Sentence : 13^th of March 2018

SENTENCE

1. MESULAME TUIWARU, NEPOTE SOKOBALAVU WAQA you both were charged with one count of Sacrilege contrary to section 305(a) of the Crimes Act No 44 of 2009(“Crimes Act”) and one count of Theft contrary to section 291(1) of the Crimes Act .
2. Sacrilege under the Crimes Act is an indictable offence (which is triable summarily) and you both elected this Court and also pleaded guilty for this charge on 09/03/2018.
3. You both also admitted the following summary of facts presented by the prosecution:

On 17/02/18 at about 1043hrs, George Kumar(PW-2), 57 years, property supervisor of Lot 2 Wailekutu, Lami reported that an unknown person broke into the Latter Day Saints Church, Waila.

On 17/02/18 at about 0730hrs, Jope Vuakatagane(PW-1), 25 years, unemployed of Waila Feeder Road went to the Latter Saint Church to attend a self-relents class when noticed that seven(7) of the office doors opened and everything inside scattered all the floor. (PW-1) saw that some louvre blades were removed and also the grilled door were forced opened. (PW-2) later came to the church and both found the following items missing: 1x 49 inch Simmons flat TV screen valued at $1,200, 1 x sewing machine valued at $450.00 and 1 x CD player radio valued at $300.00 all amounting to $1,950.00.

Upon investigation, PC 5708 Isikeli Bola (PW-4), who was the K9 standby and SC 2294 Nasoni(PW-3) and WDC 3585 Sisilia (P-5) who was the Crime standby attended to a report at Total Service Station, Waila in Fleet 267(ED UB). While coming back from total Service Station on or way to Nausori we went pass a grey fielder taxi, (PW-3) then yelled out to (PW-4) to reserve the police vehicle because he saw something suspicious to the way the grey fielder taxi which was parked on the road just before the Waila Housing Road junction. (PW-4) the reversed the police vehicle and stopped behind the parked grey fielder taxi. (PW-3) got off the police vehicle and approached two suspect and arrested them at the same time with the assistant of (PW-4) and seized the flat screen TV and escorted both to Nausori Police Station.

At the station, MESULAME TUIWARU(acc-1), 21 YEARS, U/E AND NEPOTE SOKOBALAVU WAQA, 19YEARS, U/E both of Waila Housing were searched and locked in the cell. Later (ACC-1) and (ACC-2) were cautioned interviewed and admitted to the allegation and formally charged for the offence of SACRILEGE: Contrary to Section 305(a) and THEFT : Contrary to Section 291 of Crime Act No: 44 of 2009.

4. I am satisfied that your pleas were unequivocal and voluntarily. Accordingly I convict you both for these offences.
5. The maximum penalty for Sacrilege under the Crimes Act is 14 years imprisonment.
6. There is an identical provision under the Penal Code (Section 298) with the same penalty and State v Kaulawe [2011] FJHC 336; HAC073.2008 (8 June 2011) the Court selected 03 years as the starting point for the accused.
7. In Vetau v The State [2003] FJHC 159; HAA0054J.2003S (21 November 2003) the Court upheld that the 15 months imprisonment was not harsh or excessive for a young offender who committed the Sacrilege under the Penal Code.
8. In State v Ledua - Sentence [2014] FJHC 223; HAC122.2012 (1 April 2014) the court selected 24 months as the starting point for the accused who committed the Sacrilege under the Crimes Act.
9. All these above cases did not mention about tariff for this offence under the Penal Code or Crimes Act. Hence it appears that presently there is no tariff for this offence.
10. The maximum penalty for the offence of Burglary under the Crimes Act carries 13 years imprisonment.
11. The tariff for Burglary is between 18 months to 3 years. Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002.
12. But in State v Prasad - Sentence [2017] FJHC 761; HAC254.2016 (12 October 2017) his Lordship Justice Perera said “I am inclined to hold the view that the established tariff(s) for the offence of burglary is itself lenient. Where the lawmakers have decided to set the maximum penalty as an imprisonment term of 13 years for the offence of burglary, the upper limit of the established tariff(s) is just 3 years which is less than one-fourth of the said maximum penalty.”
13. In State v Prasad (supra) the court held that the tariff for Burglary under the Crimes Act should range of 20 months to 6 years.
14. Considering the penalties are very much similar in my view the tariff for the Burglary can be adopted for the offence of Sacrilege under the Crimes Act subject to guideline judgment from the High Court.
15. The maximum penalty for Theft is 10 years imprisonment.
16. 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.

17. Section 17 of the Sentencing and Penalties Act, provides:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

18. The 2 offences both accused have convicted are found on same facts and hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act.
19. 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".

20. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 30 months as starting point aggregate sentence for both accused.
21. These offences were committed in the night and I consider this as an aggravating factor and add 10 months to 40 months imprisonment.
22. In mitigation your counsel submitted the following :

1^st accused

1. You are 21 years old;
2. Married with wife expecting a child ;

100. Remorseful ;

4. Some items were recovered.

2^nd accused

1. You are 19 years old;
2. Student ;

100. Remorseful;

4. Some items recovered.

23. For these mitigating factors I deduct 06 months to reach 34 months imprisonment for both accused.
24. The 1^st accused is not a first offender and hence not entitle for discounts for his past good behavior. But the prosecution confirmed to this court that the 2^nd accused has no previous convictions and for that I deduct 04 months to reach 30 months imprisonment.
25. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case”.

26. The Court of Appeal said in Poate Rainima CA AAU0022 of 2012)

“It has always been accepted (though not by authoriaive judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be first valid and to be applied in all future proceedings at first instance”.

27. Both accused pleaded guilty at the first available opportunity and for that I deduct 1/3 to reach 22 months imprisonment for the 1^st accused and 20 months imprisonment for the 2^nd accused.
28. Now I have to consider whether to suspend these sentences pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
29. In Vetau v The State (supra) her Ladyship Justice Shameem said:

“Sacrilege is an offence which strikes at the heart of religious freedoms guaranteed by the Constitution. It is an offence far more hurtful to a person than a theft in a house.... Religion and faith are of paramount importance to all our communities. Offenders who insult the faiths of the community, who fail to show others the respect they themselves expect to receive, should be given custodial sentences which reflect society’s disapproval of such behaviour.”.

30. In State v Kaulawe (supra) Justice Madigan said :

“Sacrilege is a serious offence. It shows complete disregard for and contempt for other people's religious buildings. In Fiji where there are major religious denominations living together, it is most important that tolerance of each others religions and their fixtures be respected and protected.

31. In Fiji religion plays a special role in the lives of the people. It is devastated for them to see their places of worship being desecrated and things stolen from them. Hence the criminals who failed to show the respect to the other religions in this country need to be dealt with harsh sentences to denounce their behaviors. Further with the recent spate of sacrilege cases in Fiji (14 cases from September 2017 to February 2018) custodial sentence is warranted in this case to deter these incidents from continuing in future.
32. Accordingly I sentenced you both to following imprisonment.

MESULAME TUIWARU- 22 months’ imprisonment;

NEPOTE SOKOBALAVU WAQA- 20 months’ imprisonment.

33. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate