State v Soqila [2010] FJHC 583; HAC030.2010 (9 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 030 OF 2010

STATE

vs

JOSEVA SOQILA

Mr. T. Qalinauci for the State
Mr T. Terere (LAC) for the Accused

Date of Hearing: 30 November, 7 and 9 December 2010
Date of Sentence: 09 December 2010

SENTENCE

[1] This accused stood charged along with three others with the following offence:

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KALIOVA BAINIVALU, JONE NASOQESOQE, EPI BATIREREGA, JONE SOQILA, on the 10th day of April 2010 at Lautoka in the Western Division entered Shop and Save Supermarket with intent to commit theft.

[2] To this count he entered a plea of guilty on the 30th November. On the 7th December he agreed a set of facts read to him and on his plea and agreement to the facts, I found him guilty and convicted him of the count.

[3] The facts of the case agreed by the accused are as follows:

On the 10th day of April between 8.10pm – 8.45pm at Shop & Save Supermarket at Tukani Street, Lautoka, the accused Joseva Soqila of Waiyavi, Lautoka with others while armed with offensive weapons broke into the Shop & Save Supermarket with intent to commit theft.

On 10/4/10, the accused was drinking liquor with some others when he was approached to break into the Shop & Save Supermarket at Tukani Street, Lautoka to help break open the safe kept in the shop.

The accused with others then entered the Shop & Save Supermarket through the cut mesh wire and burglar bars. The accused with others broke open the office doors and tried to break the safe containing cash amounting to $80,000.00. An alarm was activated whereby an unknown caller reported the matter to the police.

A team of police and military personnel surrounded the Shop & Save Supermarket and the accused was arrested together with some others and taken to the Lautoka Police Station. The accused was carrying shop breaking equipments like car jack, screw drivers, bolt cutter, 2 pinch bars which were seized by the police.

The accused was interviewed under caution by the police on 12/4/10 where he admitted the offence of aggravated burglary contrary to section 313(1)(a) of the Crimes Decree No. 44 of 2009.

Mitigation

[4] The accused is 46 years old married with two adult children. He worked as a casual labourer earning very meagre wages and has been educated to Form 6 level. He professes to be a Christian.

[5] He claims to be very remorseful and stresses that he had no part in the planning of the escapade but got caught up in the offence when he had too much to drink. He claims to have been severely beaten by Police and Military personnel, a claim which is supported by contemporaneous medical reports. He says he has suffered from his eight months in the remand center and has sorely missed his family.

[6] There are no real aggravating features in this crime apart from the aggravation of acting in concert with others, which is subsumed in the offence charged. It could be said to be an aggravating feature that the burglary was at night time into large commercial premises.

[7] The accused has 21 previous convictions in the last ten years, some of violence, some drug or alcohol related, and five of invasion of premises belonging to others. After a spate of offending in year 2000, he has only 6 previous convictions (mostly minor) since then. The State invites me to classify him as a habitual offender, but I decline to do that. Although he does have an appalling record, it is quite clear that since the year 2000 he has seemingly sought to reform committing none of the serious offences that he had thitherto. It is also apparent that he has issues with alcohol and substance abuse which lead to this crime and no doubt to others.

[8] The maximum penalty for aggravated burglary (the aggravation being acting in concert with others) is 17 years imprisonment. The accepted tariff for the offence is between 18 months and three years (Tomasi Turuturuvesi – HAA 86/2002). Apart from the aggravation inherent in the offence, the additional aggravation of night time invasion of commercial premises is not to be penalized.

[9] I take a starting point of 30 months imprisonment and for a timely plea of guilty I deduct a full third bringing the sentence down to 20 months. The accused has been in custody for eight months and of course he must have credit for that so the sentence I pass on this accused is one 12 months.

[10] I am cognizant of the fact that nothing was stolen in this burglary and no substantial damage was done to property. Whilst I am aware of the obvious severity of commercial burglaries, this present incident appears to be no more than an opportunistic drunken escapade.

[11] The accused's previous record does him no credit, however as previously mentioned the record does demonstrate an attempt by this accused in the last few years to improve his behaviour in the community. He should be encouraged to continue to better his reputation.

[12] The accused, having been convicted is sentenced to a term of imprisonment of 12 months. I suspend six months of that sentence, for a period of 6 months until 10th June when he will again come before me to determine how he should serve the second six months of his sentence. That may well encourage him to spend a crime free period of six months with his family.

[13] He has 30 days to appeal.

[14] Next appearance, 10 June 2011.

P.K. Madigan
Judge

At Lautoka
09 December 2010