State v Bainivalu [2011] FJHC 186; HAC030.2010L (24 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 030 OF 2010L

STATE

V

1. KALIOVA BAINIVALU
2. JONE NASOQESOQE
3. EPI BATIREREGA
   

Mr. M. Korovou for the State
All Accused in Person

Date of Hearing: 17 February and 22 March 2011
Date of Sentence: 24 March 2011

SENTENCE

[1] On the 13th April 2010, these accused appeared with one other in the Magistrates Court at Lautoka charged with one count of aggravated burglary and one count of resisting arrest.

FIRST COUNT

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, JOSEFA SOQILA, on the 10th day of April 2010 at Lautoka in the Western Division entered Shop and Save Supermarket with intent to commit theft.

SECOND COUNT

Statement of Offence

RESISTING ARREST: Contrary to section 277(b) of the Crimes Decree No. 44 of 2009

Particulars of Offence

KALIOVA BAINIVALU, JONE NASOQESOQE, EPI BATIREREGA, JOSEFA SOQILA, on the 10th day of April 2010 at Lautoka in the Western Division resisted Police Constable Rupeni Koroilagilagi whilst effecting arrest in the due execution of his duty.

To these charges, all accused entered pleas of not guilty. The case was then transferred to this Court where pleas of not guilty were entered on every appearance.

[2] On the 13th November 2011, their co-accused ("the 4th accused") changed his plea to guilty and was sentenced on the 9th December to a suspended sentence for reasons peculiar to himself.

[3] Not surprisingly, the next time these three accused appeared, on the 20th January 2011, they too indicated that they would change their plea and plead guilty to the burglary but not the resisting arrest.

[4] Consequently a set of facts was put to them all on the 8th March 2011, which they all admitted and they were thereupon convicted. The State do not wish to proceed with the resisting arrest offence and therefore the charge will lay on file, not to be proceeded with, without the leave of this Court.

FACTS

[5] The facts admitted were that at about 8.00pm on the 10th April 2010 the accused all broke into the Shop & Save Supermarket at Tukani Street, Lautoka by cutting the mesh wire and burglar bars. They broke open an office door and tried unsuccessfully to break into the safe which contained a large amount of cash. An unknown caller reported the break-in to the Police and an alarm was activated. A team of Police and military personnel surrounded the store and the accused were arrested together while inside the store. They were overpowered by the Police and Military. They were carrying shop breaking equipment like car jack, screw drivers, bolt cutter and pinch bars.

MITIGATION

[6] All three accused have advanced written and oral submissions in mitigation of their offending. The State has filed helpful submissions on sentence.

[7] The first accused is 39 years old and unmarried. He was unemployed when arrested, but tells me he has now arranged a job with the Water Authority of Fiji and in additional to that he wants to go back to study to be a plumber at T.P.A.F. He expresses remorse and asks for forgiveness, and says that he is sincere in his desire to rehabilitate himself. All of that being to his credit he has a yoke of 19 previous convictions around his neck, six of which are current. All of these offences are for invasion of property, damage to property and larceny. Although he will not be sentenced on his previous record, it affords him no grant of leniency either. I do note however that after being convicted of nine offences in 2000, he has only been convicted six times since then, and the last time being in this Court in 2007. For this reason I decline the State's invitation to have him classified as a "habitual offender", he obviously showing an attempt to better himself.

[8] The second accused is 30 years old and is married with one child of 8 years. He worked previously as a night watchman and now expresses in writing his utter remorse for this offence. He tells me that on the day in question he was in town drinking alcohol when he was induced by "friends" to commit this crime. He urges the Court to consider that nothing was stolen and to consider that he has only a few previous convictions and that he was not involved in planning the offence. He has four previous, all current including 2 robbery offences and one drug offence. He has not offended in the last 4 years.

[9] The third accused is 46 and married with 2 children. He says that since he was released from prison in 2009 he has worked in odd jobs and as a bailiff. He produces an unsigned letter from a registered bailiff dated 11 March 2011 which letter while falling short of offering him continued work as a bailiff serves as a reference as to his reformed character. This accused has an inescapable burden of 46 previous convictions, 6 being current, however again as with the first accused after 9 convictions in 2000, there has been a remarkable slowing down of offending since then with his last conviction being a robbery with violence in this Court in 2007. There being only offences "alive", I again decline to declare him a habitual offender.

[10] 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 (Turuturuvesi – HAA 86 of 2002).

[11] In sentencing the co-accused Josefa Soqila for this offence in December last year, I took a starting point of 30 months imprisonment, and to be fair there is no reason why I should not take the same starting point for these three accused. Each of these accused will then have their sentences started at 30 months.

[12] Soqila received credit for his early plea of 10 months, being a third but this discount is not applicable to these accused. They maintained pleas of not guilty throughout and it was only on seeing the generous sentence meted out to their co-accused that they changed their plea. The Court remains very cynical about their claims of sudden remorse at the very next hearing after Soqila was sentenced. Nevertheless credit must be given for the pleas of guilty, but certainly not as much as to Soqila. Each of these accused will receive a discount of six months for their plea of guilty.

[13] Each of these accused was held in remand for only two months in respect of this matter. The rest of the time they were afforded bail. They will have credit for those 2 months which brings their sentence down to 22 months each.

[14] The first accused will receive further credit for his stated remorse and his obvious attempts to reform since his last conviction in 2007. For that he will receive credit of 8 months meaning that he will serve a total term of imprisonment of 18 months.

[15] The second accused will similarly receive eight months credit for his remorse and for his ability to stay crime free for the last 4 years. He will serve a term of imprisonment of 18 months.

[16] The third accused will too serve a term of 18 months, being given credit of eight months for remorse and for what he says will be the impact on his family.

[17] Should these accused feel aggrieved at the seemingly lenient sentence handed down on the 4th accused, Soqila, it should be remembered that he was not admitted to bail, which means he was given additional credit of 8 months for the time he spent in custody before he changed his plea.

[18] I am aware that this crime was impromptu and unprepared but took on a life of its own after much alcohol had been consumed. While this Court does not in any way wish to condone alcohol fueled criminal activity, it is but one factor in this incident where there does not seem to have been any planning, where no property was stolen, and where the accused were severely abused physically by either the Police, the Military or both.

[19] In the circumstances and to dispel any claim of disparity of sentence, I order that for each accused, the first 9 months of the sentence be served in custody and thereafter 9 months be suspended.

[20] The effect of the partially suspended sentence is explained.

Paul K. Madigan
JUDGE

At Lautoka
24 March 2011