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State v Roko [2018] FJMC 86; Criminal Case 24 of 2016 (21 September 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAILEVU

Criminal Case No: - 24/2016

HAC No: 134/2016

STATE

V

ELIA ROKO

For the Prosecution: WPC Siteri

For the accused: Ms.Neha Singh (LAC)

Date of Hearing: 17^th of September 2018

Date of Sentence : 21^st of September 2018

SENTENCE

1. ELIA ROKO you were charged with another for 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 pleaded not guilty and this was fixed for hearing on 17^th September 2018. On that day you changed your plea to one of guilty.
3. You also admitted that on 11^th February 2016 at Korovou town , Tailevu you with another broke in to GAYA’ S Shop and stole cash $120.00, 15x Lee trousers valued at $675.00, 23 x T-Shirt valued at $481.85 all to the total value of $1276.85.
4. I am satisfied that your plea was voluntary and unequivocal. Accordingly you are convicted for this charge.
5. The maximum penalty for Aggravated Burglary under the Crimes Act is 17 years imprisonment.
6. The maximum penalty for Theft is 10 years imprisonment.
7. In State v Aumaile - Sentence [2018] FJHC 196; HAC08.2018 (16 March 2018) his Lordship Justice Goundar said :

“The maximum penalty for aggravated burglary is 17 years imprisonment. The acceptable range is 18 months to 3 years imprisonment (State v Sauvakalia [2013] FJHC 520; HAC132.2010 (9 October 2013)). The maximum penalty 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)).”

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 2 offences you 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.
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 the starting point for the aggregate sentence for the accused.
12. You broke in to a business premise in the night and in your caution statement you admitted this was planned and executed. You also admitted you had iron rod with you which you used to break the shop. For these aggravating factors I add 10 months to reach 28 months imprisonment.
13. In written mitigation your counsel submitted that you are presently 26 years old, married with a child, working as a lorry boy and sole bread winner of the family. You have come from a broken family. The prosecution confirmed that you are a first offender.
14. For these mitigating factors I deduct 06 months to reach 22 months imprisonment.
15. You pleaded guilty only on the hearing date. But your plea has saved the court from proceeding for a hearing and for that I deduct 04 months to reach 18 months imprisonment.
16. You were in remand for nearly 02 months and pursuant to section 24 of the Sentencing and Penalties Act I deduct that period to reach 16 months imprisonment.
17. Now I would consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
18. Your counsel submitted Navia v The State [2006] FJHC 6 and Singh v State [2000] FJHC 115 where the court held there need to be some leniency for young and first offenders. Based on these decisions the counsel is seeking a suspended sentence to allow you the chance to rehabilitate.
19. But in State v Vilikesa Tilalevu & Savenaca Mataki [2010] HAC 81/10L 20 July 2010 his Lordship Justice Nawana said:

“I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.”

20. Even though you are a young and a first offender I do not think suspending the sentence is suitable in this case. With the increase numbers of burglaries targeting business premises in the country, harsh sentences are warranted presently to punish the criminals and protect the business people.
21. ELIA ROKO, accordingly you are sentenced to 16 months imprisonment for this charge.
22. Since this court is exercising the extended jurisdiction of the High Court, the parties may appeal against this sentence to the Court of Appeal within 30 days. .

Shageeth Somaratne

Resident Magistrate