State v Kasim [2008] FJHC 70; HAC063.2008 (1 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Appeal Case No.: HAC 063 of 2007

BETWEEN:

THE STATE

AND:

MOHAMMED KASIM
MOHAMMED ZAIN KASIM

Counsel: Mr. A. Ravindra-Singh & Ms. J. Shah for the State
Mr. H. Nagin for both Accused

Date of Hearing & Sentence: Tuesday 1st April, 2008

SENTENCE

[1] Mohammed Kasim and Zain Kasim you are convicted of house breaking, entering and larceny. You exercised your right to a trial and I will not take this against you.

[2] On 28th April 2006, you embarked on a joint enterprise and broke and entered the complainant’s flat and stole items of substantial value. The total value of the stolen items was about $30,000. The items were recovered through the information provided by your accomplice, Benjamin Savou. You did not assist in the recovery of the stolen items to deserve credit.

[3] The complainant, Gary Cline, was your tenant. He was a foreign national and had just arrived in the county. As the landlord, you were in a position of trust and you breached your tenant’s trust.

[4] Your conduct demonstrates a high degree of planning. After stealing, you transferred the stolen items to a number of places to conceal your trails.

[5] Mohammed Kasim you are 46 years old. You are married with 4 children. You operate an automotive garage. Your counsel said that you suffer from diabetes and high blood pressure. I do not find your illness exceptional to give you credit. You have one conviction in 2005 for disturbing religious assembly. Otherwise, you are a person of good character. Zain is your son. You used your son and your worker to commit a crime. I accept you were the mastermind behind this crime. As an older and matured person, you should be a role model to your children. I regret to say that you have failed your family as a father.

[6] Zain you are 22 years old and married with a seven month old son. You have been recently married. You work for your father and you reside with your parents.

[7] The tariff for house breaking, entering and larceny is between 2 to 3 years imprisonment (Malakai Tuisoba v State, Criminal Appeal No. HAA 098 of 2007S).

[8] In some cases, lower sentences have been imposed, that is, from 9 months imprisonment to 18 months imprisonment, where the offender is young, and a first offender or where the stolen items have been recovered through information provided by the offender (see, Josevata Nakidi v the State, Crim. App.No.7 of 1998, Waisiki Navuso v the State, Crim. App. No. HAA039 of 2004S, and Mohammed Talim & Asgar Ali v the State, Crim. App. No. HAA089 of 2003S).

[9] I have taken into account that your accomplice was sentenced to 12 months imprisonment suspended for 2 years after an early guilty plea, remorse, cooperation with the police and assistance in the recovering of the stolen items. These factors are not present in your case. For this reason, any disparity in the sentences will be justifiable.

[10] Mohammed Kasim, after taking into account your personal circumstances and previous good character, the value of stolen items, and the breach of trust by you, I sentence you to 2 years imprisonment. There are no exceptional circumstances to suspend your sentence. You go to prison for 2 years.

[11] Zain, after taking into account your young age, previous good character, your minimal role and the value of stolen items, I sentence you to 12 months imprisonment. There are no exceptional circumstances to suspend your imprisonment term. You go to prison for 12 months.

Daniel Goundar
JUDGE

At Suva
Tuesday 1st April, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Sherani & Company, Solicitors, Suva for both the Accused