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State v Vakatawa - Sentence [2018] FJMC 38; Criminal Case 246 of 2014 (19 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 246/2014

STATE

V

SIRINO VAKATAWA

AVISHKAR ROHINESH KUMAR

For the Prosecution: WPC Siteri

For both accused: Ms.S.Prakash

Date of Sentence : 19^th of March 2018

SENTENCE

1. SIRINO VAKATAWA ,AVISHKAR ROHINESH KUMAR you both were charged with one count of Aggravated Burglary contrary to section 313(1) (a) of the Crimes Act No 44 of 2009(“Crimes Act”) and one count of Theft contrary to section 291(1) (2) of the Crimes Act .
2. You both pleaded guilty the amended charge on 05/03/2018 and also admitted the following summary of facts presented by the prosecution:
   

Between the 25th day of April 2014 at about 1900hrs to the 26th day April 2014 at about 0800hrs one SIRINO VAKATAWA(B-1) aged 25yrs, unemployed of Vunimono, Nausori and AVISHKAR ROHINESH KUMAR(B-2) aged 19yrs, unemployed of Luvuluvu, Nausori broke into the Rups Investment Shop at Nausori Town and stole therein 7suitcase valued at $573.00, 3 blankets valued at $120.00, 4 sandwich maker valued at $159.80, 1 gas burner valued at $39.50, 7 bathing towel valued at $104.65, 10 rechargeable light valued at $249.50, 4 emergency lamp valued at $59.80, 1 iron valued at $19.95 all to the total value of $1326.20 the property of RUPS INVESTMENT SHOP.

qOn the above time and place Bimal Vikash Deo (A-1) aged 24yrs Assistant Manager, closed the said shop and left home. Upon returning the next day (A-1) noticed that the top floor back door forcefully opened and then he entered the said shop noticed the shop was ransacked.

(A-1) then reported the matter at Nausori Police Station. Upon receiving the report investigation was conducted where information was received from IOWANE DUADRA NAICORI (A-2) aged 26 years driver of Visama Feeder Road that (B-1) approached him and requested to load some stuff into his vehicle Registration No: EY409 and (A-2) notice the suitcase and when dropping (B-1) and (B-2) then (B-1) gave (A-2) a blanket with a case.

(B-1) and (B-2) were arrested interviewed under caution and both admitted the offence. (B-1) in Q&A 11 and (B-2) in Q&A 16 are both stated that they looking for money. One blanket valued at $40.00 has been recovered from (A-2). The electrical iron valued $19.95 was recovered from (B-1). (B-1) and (B-2) charged for Aggravated Burglary and Theft.

3. I am satisfied that your pleas were voluntarily and unequivocal. Accordingly you both are convicted for this charge.
4. The maximum penalty for Aggravated Burglary under the Crimes Act is 17 years imprisonment.
5. The accepted tariff for this offence till recently was between 18 months to 3 years. Niudamu v State FJHC 661; HAA 028.2011(20 October 2011)
6. But in State v Prasad - Sentence [2017] FJHC 761; HAC254.2016 (12 October 2017) introducing a new tariff for this offence his Lordship Justice Perera said:

“Further, based on the tariff established by the Supreme Court for the offence of aggravated robbery, the tariff for the offence of aggravated burglary which carries a maximum sentence of 17 years should be an imprisonment term within the range of 6 years to 14 years.

7. Hence I find that the present tariff for this offence is 06 to 14 years imprisonment.
8. The maximum penalty for Theft is 10 years imprisonment.
9. 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.

10. 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.”

11. The 2 offences you both have been 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.
12. 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".

13. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 08 years as the starting point the aggregate sentence for both accused.
14. These were committed in the night and premeditated by both accused as shown from their caution statements. I consider these as aggravating factors and add 04 years to reach 12 years imprisonment.
15. In mitigation your counsel submitted the following :

1^st accused

1. 28 years old;
2. Separated with a small child;

100. Seek forgiveness;

4. Some items recovered;
5. First offender;
6. Sole bread winner of the family;
7. Willing to restitute.

2^nd accused

1. 22 years old;
2. Single;

100. Seeking forgiveness;

4. Some items recovered;
5. First offender;
6. Supporting elderly grandmother.

16. In Sauleirogo v State [2018] FJHC 91; HAA122.2017 (21 February 2018) his Lordship Justice Sharma said :

“Restitution before a case comes to Court may well be of some benefit to an accused in mitigation but restitution during the Court process sends a message of solicitation to a lenient sentence.”

17. The accused were charged in 2014 and more than sufficient time to make restitution or arrangement. Their indication at this stage is not a genuine and trying to escape the punishment. Hence I disregard this as a valid mitigating factor.
18. But for other mitigating factors I deduct 03 years to reach 09 years imprisonment.
19. 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”.

20. Even though this charge was pending from 2014 I find after the amended charge was filed in 22/11/2017 you both pleaded guilty on the first available opportunity. Hence giving full credit I deduct 1/3 to reach 06 years imprisonment for both accused.
21. This is a case where the criminals broke in to a shop in the night in Nausori town and stole substantial value of properties from that place. Tolerating these kinds of offences in any part of the country would discourage the people from engaging in businesses. Further to protect their businesses they have to adopt advance security methods and costs have to bear in the end by the consumers of the country. Hence severe sentences are warranted to denounce the behavior of the accused, protect the businesses in the country and to deter these from happening in future.
22. SIRINO VAKATAWA , AVISHKAR ROHINESH KUMAR , accordingly you both are sentenced to 06 years for this charge with a non-parole period of 05 years .
23. Since this court is exercising the extended jurisdiction of the High Court, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

Shageeth Somaratne

Resident Magistrate