State v Tuivawa [2010] FJHC 212; HAC029.2010 (25 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 029 OF 2010

STATE

V

1. SERUPEPELI TUIVAWA
2. TOMASI CAURANI

Ms L. Tabuakuro for the State
Mr. T. Terere (as Party Solicitor) for both Accused

Date of Hearing: 21 June 2010
Date of Sentence: 25 June 2010

SENTENCE

[1] On their first appearance in this Court on the 21st May 2010, both accused entered pleas of guilty to an offence of aggravated burglary and an offence of theft, contrary to section 313(1)(a) and section 291(1) of the Crimes Decree 2009 respectively. On the 16th June 2010 both admitted a summary of facts and were convicted.

[2] The facts are that on the 7th March 2010 at about 2200 hours the two accused entered the compound of Subhas Chandra, forced open a shed and stole 15 bags of fertilizer worth $450.00. They loaded the bags onto a truck and sold them to a Chinese farmer at Paipai, Vitogo for $300. Both accused admitted the offences under caution.

[3] Although the maximum term for aggravated burglary is 17 years, and for larceny 10 years, I held in State v Mucunabitu & Others – HAC 17 of 2010 that the proper tariff was to be between 18 months and 3 years for aggravated burglary. It will almost always be the case that the theft will form part and parcel of the same incident, and therefore a concurrent sentence would be appropriate. For this reason, it is not yet the time to set tariffs for the new offence of theft.

[4] The first accused is 36 years old and is married with 4 children. He is unemployed but earns a small income from farming and selling vegetables. He has been educated to Form 4. The second accused is 30 years of age, is single, and works as a diver and fisherman earning $90 per day. He supports an elderly mother and has been educated to Form 5. I am told that both are remorseful which is of course borne out by their guilty pleas. The items have been recovered and returned to the owner and they have reconciled with the complainant. I do however note that the bags were stolen for the purposes of financial gain.

[5] Whilst the mitigation for both of the convicts is powerful, society does not tolerate persons forcing entry into another’s premises and theft therefrom. It is not a deed that was done on the spur of the moment, but an offence which was planned, albeit to a limited degree. Although there is no doubt that the offence was one of joint enterprise, it is clear that the first accused was the initial instigator of the deed.

[6] For the first accused I take a starting point of 24 months. For his mitigation I deduct 6 months leaving a sentence of 18 months. There are no compelling aggravating features in addition to the aggravation subsumed in the charge. For his guilty plea at the earliest opportunity I deduct one-third leaving a total sentence of 12 months imprisonment.

[7] For the theft charge I sentence him also for 12 months to be served concurrently with the burglary sentence. This accused does not have any previous convictions and as a first offender he should be afforded additional credit. From the total concurrent sentence of 12 months, I deduct a further 3 months, meaning that he will serve a total term of 9 months imprisonment.

[8] The second accused does not have the benefit of a clear record. Of his previous convictions which are still on record, one is for a similar offence in April 2009. He was persuaded by the first accused to commit the offences. For the offence of aggravated burglary I take a starting point of 18 months and for his mitigating features; I deduct 6 months. There are no aggravating features to be considered. From this total of 12 months, I deduct a full one-third for his very early plea of guilty meaning that he will serve a total term of 9 months imprisonment. For the offence of theft, I sentence him to a concurrent term of 9 months.

[9] You both have 28 days to appeal the sentences.

Paul K. Madigan
Judge

At Lautoka
25 June 2010