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State v Taria [2018] FJMC 69; Criminal Case 85 of 2018 (5 July 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT LEVUKA

Criminal Case No: - 85/2018

STATE

V

LUKE MEKE TARIA

For the Prosecution : Sgt.Shalend

The accused : In person

Date of Sentence: 05^th of July 2018

SENTENCE

1. LUKE MEKE TARIA , you pleaded guilty to one count of Burglary contrary to section 312(1) of the Crimes Act No 44 of 2009(“Crimes Act”) , one count of Theft contrary to section 291(1) (2) of the Crimes Act and one count of Breach of suspended sentence contrary to section 28(1) of the Sentencing and Penalties Act.
2. You also admitted that between the 01^st day and 30^th day of April 2018 at Baba settlement, Ovalau you broke in to the dwelling house of the complainant and stole 1 whale tooth valued at $700.00, 1 pink wooden hokey stick valued at $65.00 and 2 vests valued at $30.00, to the total value of $795.00, the properties of the complainant. You committed these offences whilst you were under a suspended sentence imposed by the Nausori court on 16/10/2017.
3. I am satisfied that your plea was voluntary and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Burglary under the Crimes Act is 13 years imprisonment.
5. The penalty for the Theft is 10 years imprisonment.
   
6. In State v Mate - Sentence [2018] FJHC 249; HAC76.2018 (3 April 2018) his Lordship Justice Goundar observed :
   

“The maximum penalty prescribed for burglary is 13 years imprisonment. The suggested tariff for burglary is between 1 to 3 years’ imprisonment Waqavanua v State [2011] FJHC 247; HAA013.2011 (6 May 2011); Uluicicia v State [2015] FJHC 61; HAA028.2014 (30 January 2015).

[5] The maximum penalty prescribed for theft is 10 years imprisonment. The tariff depends on the nature of theft, but it can range from 2 months to 3 years imprisonment (State v Saukilagi [2005] FJHC 13; HAC0021X.2004S (27 January 2005)).”

7. For breach of suspended sentence a court may impose a fine not exceeding 100 penalty units and must restore the suspended sentence unless there are exceptional grounds the court may impose a part of the sentence or make no order about that.
8. 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.”

9. The 1^st and the 2^nd count you have been convicted (Burglary and Theft) 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.
10. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) 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".

11. Considering the above judicial precedents and based on an objective seriousness of the offences, I select 18 months as starting point of your aggregate sentence.
12. In State v Takalaibau - [2018] FJHC 505; HAC154.2018 (15 June 2018) Justice Goundar cited the Brewster 1998 1 Cr App R 220 where Lord Bingham CJ observed : “Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have. The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled. The seriousness of the offence can vary almost infinitely from case to case. It may involve an impulsive act involving an object of little value (reaching through a window to take a bottle of milk, or stealing a can of petrol from an outhouse). At the other end of the spectrum it may involve a professional, planned organisation, directed at objects of high value. Or the offence may be deliberately directed at the elderly, the disabled or the sick; and it may involve repeated burglaries of the same premises. It may sometimes be accompanied by acts of wanton vandalism.”
13. Hence a sentencing court may consider the following grounds as aggravating factors in a domestic burglary :
    1. Considerable loss of properties ;
    2. The properties stolen may have some sentimental value to the owner;
    100. Significant damage done to the property;
    4. There were some planning ;
    5. The owner was present when this was committed;
    6. The offence was committed in the night time.
14. Even though the owner was not in the home and it appears that there were no planning or significant damages, I note that one of the items that were stolen is whale tooth. This has not been recovered by the police to restore back to the owner. In Fiji the whale tooth is known as “Tabua” which roughly translate as sacred and has special place in the society. It has monetary as well sentimental value and used for traditional ceremonies. I consider this loss to the owner as aggravating factor and add 06 months to your sentence to reach 24 months imprisonment.
15. In mitigation you submitted that you are 18 years old, student and seeking forgiveness. One of the items was recovered. Giving much weight to your young age I deduct 06 months from your sentence to reach 18 months imprisonment.
16. Since you have previous convictions you are not entitle for discounts for your previous good character.
17. You pleaded guilty at the first available opportunity and for that I deduct 1/3 to reach 12 months imprisonment.
18. Now I would consider whether to suspend your sentence.
19. In Hayes (1984) 11 A. Crim R. 187 the Chief Justice, Sir Laurence Street of New South Wales Court of Criminal Appeal, made the following observations:

“The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts. It is, however, the considered view of this Court that the time has come for a hardening in the policy of criminal courts when sentencing for this offence.”

20. With the increase number of home invasions happening in the country I also find the courts need to give more emphasis to deterrence and the protection of the public .Only in exceptional cases the court may consider non-custodial sentences even for young offenders. The time has come for the courts to hardened their policies and consider the public safety as paramount in dealing with this kind of offences.
21. Coming back to this case I find that you have committed these offences whilst on a suspended sentence. You were convicted on 16/10/2017 by Nausori court for Burglary and Theft and sentenced to 12 months imprisonment and this was suspended for 18 months for you to rehabilitate. Within 06 months you got back to your criminal activities and committed another house breaking. You have shown that you are not willing to reform and also a danger to public. Accordingly I find a custodial sentence is warranted for you in this case. Hence I sentenced you to 12 months imprisonment for the 1and the 2^nd count as aggregates imprisonment.
22. Now I would consider what sentence would be proper for breach of suspended sentence. Since you are committed to prison now I do not think you are have ability to pay the fine. But I am going to restore your suspended imprisonment. In my view there are no special factors and accordingly this restored suspended sentence is to be consecutive to your 1^st and the 2^nd counts.
23. Accordingly you are sentenced to 24 months imprisonment for this charge. Considering your young age and as a final way of mercy I would not fix a non-parole period in this case.
24. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate