State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010)

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Date of Hearing: 10 and 16 September 2010
Date of Sentence: 16 September 2010

[1] Vikatore Tabeusi, you appear for sentence in this Court after pleading guilty to charges in nineteen cases in the Magistrates Court at Lautoka. After enquiry, I am satisfied that your pleas are unequivocal and that you understand the consequence of your pleas. The Magistrate has convicted you on each charge after you had agreed to the facts read out in the Court below.

[2] During the night of 27 to 28 March 2009 you broke into the house of Naresh Chandra, a businessman of Tuvu, Lautoka and you stole $590.00 cash, a gold chain worth $1000, 2 gold chains worth $700, 1 pair of gold earrings worth $100, a gold ring worth $500 and assorted items, to a total value of $2,890, the property of the said Mr. Chandra. You had entered the dwelling while the occupants were asleep, by removing two louvre blades.

For this offence you stand convicted of one count of burglary and one count of larceny.

[3] In the evening of the 11th April 2010 you broke into the house of Joytish Singh at Saru Reservoir road by removing two louvre blades from the kitchen window. The occupants were away from the house at the time at a religious gathering. You stole foodstuffs from the kitchen, cash, a mobile phone and eating utensils all to the value of $400.00. You stand convicted of burglary and theft.

[4] Later that night (11 April 2010) you broke into the house of Yunus Ali, Vuda Back Road by removing a wooden shutter over the bedroom window and then removing four louvre blades. You stole $30 cash from a bedroom drawer. You have been convicted of burglary and theft.

[5] In the early hours of 11 April 2010, (the same day) you broke into the house of Raven Chand of Saru Lautoka by removing two louvre blades from the sitting room window while the occupants were sleeping. Therein you stole a torch, car keys and house keys all to the value of $90.00. You are convicted of burglary and theft.

[6] In the early hours of 11 April 2010, (again on the same day) you broke into the house of Ajnesh Jitendra Nand, at Lomolomo Hill side by tearing the fly screen of a bedroom and then removing two louvre blades from the kitchen window. You stole a wallet from a wardrobe which wallet contained $100 cash and you stole food from the refrigerator. You are convicted of burglary and theft.

[7] On an unknown day in October 2008 you broke into the house of Balram, a farmer of Qalitu, Lautoka by forcibly removing burglar bars and louvre blades from a window. Therein you stole a torch, a mobile phone, a radio, binoculars and gold earrings, all to the value of $825.00. You stand convicted of house breaking, entering and larceny.

[8] On the 5th April 2010 at about 5.00am you broke into the house of Andrew Amesh, a teacher of Anjan Road, Vitogo by removing 3 louvre blades from a bedroom window. You stole a digital camera worth $700 from a bedroom drawer. You alarmed the occupants by awakening them, when you were dressed only in underpants. You are convicted of burglary and theft.

[9] On the 5th April 2010 between 2200 hours and 0245 hours (6th April) you broke into the house of Hema Wati, of Vatamai Road, Lovu and stole a drivers licence and cash to a total value of $29.50. On the 6th April at about 2200 hours you broke into the house of Narayan Singh of Vatamai Road, Lovu and stole therein food worth about $10. Again on the 6th April at about 5.00am you broke into the house of Mairul Nisha at Vatamai, Lovu and stole gold rings, cash and a mobile phone all to the value of $1079.00. On the same day at 4.30am you broke into the house of Barkat Ali, Vatamai, Lovu but stole nothing because you were detected. On the 6th April at 11.55pm you stole 2 towels valued at $70, the property of Anita Wati of Vatamai, Lovu. As a result of this flurry of activity over 2 days you were convicted of four counts of burglary, and four counts of theft.

[10] On the 12th April 2010, at 2.30am you broke into the house of Rahul Rajneel Prasad and stole cash, a mobile phone and 2 wrist watches to a total value of $470.00. One of the occupants awoke and you fled from the house. You have been convicted of burglary and theft.

[11] On a day in March 2010 you broke into the house of Mohammed Ramzan and Mohammed Shafil in Drasa, Lautoka and therein you stole 2 blankets, a pair of canvass, cash, 2 chains and 3 pairs of earrings all to the total value of $1550.00. As a result you stand convicted of one charge of burglary and 2 separate charges of theft.

[12] On the 3rd February 2010 at 2.00am at Tuvu, Lautoka, you broke into the house of Daya Nand by removing 4 louvre blades from the kitchen window. Therein you stole 2 mobile phones, a bracelet, 2 gold necklaces and a gold earring, cash, an engagement ring, two wrist watches, and an aluminum pot all to the value of $1,943.00. You stand convicted of one count of burglary and one count of theft.

[13] In the night of 7th/8th April 2010 you broke into the house of Radha Krishna, farmer of Lomolomo through a bathroom window and therein you stole cash, jewellery, 2 mobile phones, whiskey, fish and chocolates all to the value of $4,100.00. As a result you have been convicted of one count of burglary and one count of theft.

[14] In the night of 4th/5th May 2010, you broke into the home of Mukesh Kumar of Saru, Lautoka by taking 2 louvre blades from the passage window. Therein you stole cash, cigarettes and a silver chain all to the value of $550.00. As a result you have been convicted of the count of burglary and one count of theft.

[15] At about 4.30am on the 11th April 2010 you broke into the house of Shakil Sandeep Chand, of Saru Lautoka by forcing the front door open. Therein you stole one gold wristwatch, a gold chain, 3 gold rings, a mobile phone and cash all to the value of $1,360.00. As a result you have been convicted of burglary and theft.

[16] On the 6th May 2010 at about 1.15am, the victim Mukesh Kumar woke to hear someone trying to open his bedroom door. The victim chased you away but found that 2 louvre blades had been removed a cupboard had been ransacked and cigarettes cash and food to a total value of $500.00 had been stolen. You stand convicted as a result of one count of burglary and one count of theft.

[17] On an unknown day in March 2009 you broke into the house of Prakash Chandra, farmer of Johnson Road, Lautoka and stole a pair of gold earrings, a gold chain, one mangal sutra, one bracelet, 3 rings, cash, a mobile phone and a cane knife all to the value of $1,347.00. You had removed 3 louvre blades to gain entry and had stolen the items from the bedroom. For this offence you have been convicted of burglary, and larceny in a dwelling house.

[18] On an unknown day in March 2009 you broke into the house of Mohammed Raza, aged 72 of Buabua, Lautoka, by removing 3 louvre blades. Therein you stole $150.00 from a drawer. As a result you have been convicted of burglary and larceny in a dwelling house.

[19] On or about the 4th April 2010 you broke in to the home of Parwati Pillay at Lovu, Vatamai Road, Lautoka and from the bedroom there you stole cash, a microwave oven, 2 DVD players, chocolates, soccer boots, canvas shoes, safety boots and perfumes all to the value of $993.00. As a result you have been convicted of burglary and theft.

[20] On the 7th March 2010 in the early hours of the morning you broke into the house of Gangaya Naicker, 63 years old, a cane farmer of Lomolomo Hillside. Therein you stole $400.00 cash, a blanket, a pair of trousers and some food. As a result you have been convicted of burglary and theft.

[21] You therefore stand convicted of 21 counts of burglary, 18 counts of theft, three counts of larceny and one count of housebreaking, entering and larceny. You have 110 previous convictions, nearly all of which are for burglary but three previous for escape from lawful custody. It was after escaping from prison in 2008 that you embarked on this "orgy" of crime. On the nights of 11th and 12th April 2010 you broke in six different houses, a burglary "binge". None of the property stolen has been recovered in any of these cases. You are 47 years old and you tell me that you are a farmer. However you had not had time to be a farmer on anything else since 1982 when you commenced your career as prison inmate. Even taking into account your previous convictions since mid 2000 which must be convictions relevant to your present sentencing – they number 67 previous; all of them, bar two, being in Labasa. Your record is shocking.

[22] It will not be a surprise to you or to anyone else for that matter, that I now classify you as an "habitual offender" pursuant to section 11 of the Sentencing and Penalties Decree 2009. As you are an habitual offender I must have regard to the protection of the community and to effect that purpose I am empowered to impose a sentence longer than would otherwise be the case.

[23] By way of mitigation you have begged for mercy. You plead full co-operation with the Police in identifying these particular crimes and you are anxious not to waste the Court's time. You regret not being able to be settled like your siblings. Most important of all, you have pleaded guilty at the first opportunity. This Court will take into account your pleas of guilty, your co-operation and your remorse.

[24] However the Court cannot ignore its responsibility to the community to protect it from wanton crime. People should be free to enjoy their homes with impunity and without uninvited invasion and to maintain their possessions without fear of theft. The people in the urban areas of Fiji are presently terrified of robberies and unwanted invasions, and it is the Court's duty to attempt to alleviate those fears by keeping "career burglars" such as you off the streets.

[25] The maximum offence for burglary under the Penal Code was life imprisonment, with the accepted tariff being two to three years after trial. Under the Crimes Decree 2009 it is now a maximum of 13 years. The maximum penalty for theft under the Crimes Decree is a term of 10 years, and for larceny under the Penal Code (after previous convictions) was also ten years.

[26] The State submits orally that the accused is beyond reform and that a substantial sentence should be imposed to remove him from society. Mr. Sovau submits that the sentences should be in the main consecutive, with a suggested total term of about 13 years after plea, a submission that is not realistic. Even the most hopeless of criminals should be afforded some prospect of liberty, and especially this tragic convict who tells me he has every intention to reform given his advanced years. While it is difficult to believe that pathetic submission, he must nevertheless have the reasonable expectation of release from his addiction.

[27] For each of the burglary offences, I take a starting point of three years, which should be the accepted tariff for domestic burglary. For the seriously aggravating features such as:

I add a further 2 years making an interim total of 5 years. Although I cannot sentence you on the basis of your appalling criminal record, I do take into account your 'status' as an habitual offender and for that, to this interim total I therefore add another 3 years making a total of 8 years. For your plea of guilty and your co-operation and remorse I deduct 3 years which means that in each of the burglary counts on which you stand convicted, you are sentenced to a term of five years.

[28] The counts of theft are varied. Property stolen ranges from $30 to $4,100 and it even included others' prepared food. I take as a starting point for each theft charge a term of three years and as you are an habitual offender I add a further term of 2 years. I deduct 2 years for your pleas of guilty and co-operation and you will therefore serve a total term of 3 years for each of your theft charges. In addition I apply this term to each of your larceny convictions and to the one count of housebreaking entering and larceny.

[29] Obviously I cannot make all of these terms consecutive because you would then be serving a total sentence of 171 years. I therefore make the following adjustments.

(a)	HAC 95 of 2010:	Burglary - 5 years Larceny - 3 years concurrently

(b)	HAC 96 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(c)	HAC 97 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(d)	HAC 98 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(e)	HAC 99 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(f)	HAC 100 of 2010:	Housebreaking entering & larceny- 3 years

(g)	HAC 101 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(h)	HAC 102 of 2010:	4 counts of burglary – 5 years on each, concurrent 4 counts of theft- 3 years on each concurrent, to be served concurrently with the burglary sentences
(i)	HAC 103 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(j)	HAC 104 of 2010:	Burglary – 5 years Two charges of Theft - 3 years each to be served concurrently with each other and with the burglary
(k)	HAC 105 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(l)	HAC 106 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(m)	HAC 107 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(n)	HAC 108 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(o)	HAC 109 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(p)	HAC 110 of 2010:	Burglary – 5 years Larceny in a dwelling house – 3 years concurrent

(q)	HAC 111 of 2010:	Burglary – 5 years Larceny in a dwelling house – 3 years concurrent

(r)	HAC 112 of 2010:	Burglary – 5 years Theft – 3 years concurrent

(s)	HAC 113 of 2010:	Burglary – 5 years Theft – 3 years concurrent

[31] This means that you will be serving 18 concurrent terms of five years. However the sentence in the housebreaking entering and larceny case of HAC 100 of 2010 dating back to 2008 will be served consecutively to the other sentences, meaning you will serve a total sentence of eight years. You will not be eligible to considered for parole for 6 years from today.

High Court of Fiji

State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010)