State v Oliver [2011] FJHC 265; HAC68.2010 (13 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 68 OF 2010

STATE

vs

1. WILLIAM OLIVER
2. MARVIN NEIL KAMA
   

Mr. S. Qica for the State
Mr. A. Patel for the First Accused
Second Accused in Person

Date of Plea: 12 May 2011
Date of Sentence: 13 May 2011

SENTENCE
[Burglary and Theft]

[1] These two accused entered a plea of guilty to one charge of burglary and one charge of theft.

FIRST COUNT
Statement of Offence

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

Particulars of Offence

EREMODO RAJALE, WILLIAM OLIVER and MARVIN NIEL KAMA, on the 22nd day of July 2010 at Lautoka in the Western Division committed burglary in the house of VICKY VIKASH KUMAR s/o Prem Nath.

SECOND COUNT
Statement of Offence

THEFT: Contrary to section 291(1) of the Crime Decree No. 44 of 2009.

Particulars of Offence

EREMODO RAJALE, WILLIAM OLIVER and MARVIN NIEL KAMA, on the 22nd day of July 2010 at Lautoka in the Western Division stole assorted jewelleries, assorted pearls, a Akira Generator, a Kawasaki brush cutter, a Nikon digital camera, 2 pairs of canvas, a portable DVD player, a car stereo, 1 bottle Red Label Whisky, assorted groceries, frozen meat and cash of $900.00, all to the total value of $13,300.00 the property of VICKY VIKASH KUMAR s/o Prem Nath with intent to permanently deprive the said VICKY VIKASH KUMAR s/o Prem Nath.

[2] The first accused admitted a set of facts which are as follows:

"On the 22nd day of July 2010 between 9am and 4pm the accused William Oliver and others were drinking beer at Yaladi Street. When the beer finished at around 1pm, the accused William Oliver and 2 others went towards Naikabula.

Upon arriving at Naikabula, they came to the house of the complainant one Vicky Vikash Kumar, which was vacant at that time. The accused person and 2 others managed to enter into the said house by using a pinch bar and spade to break open the rear steel door of the house.

Upon entering the said house they stole from therein assorted jewelleries, assorted pearls, a Akira generator, a Kawasaki brush cutter, a Nikon digital camera, 2 pairs of canvas, a portable DVD player, a car stereo, a bottle of red label whisky, assorted groceries, frozen meat and $900.00 cash, the total value of all the items being $13,300.00. The accused person and 2 others managed to secure a vehicle from a nearby shop which they hired to transport the stolen items to Delaitomuka. The accused person and 2 others then got off at Delaitomuka with the stolen items and from there they hired another van to take them to Yaladi Street to look for buyers of the stolen items and eventually whilst in the process of looking around for buyers, the accused and two others were apprehended and arrested by police officers. All the items were recovered except the cash."

[3] The second accused admitted that he stood outside guarding while the others were inside stealing, and he knew that they were stealing. He later assisted the boys to carry away the goods.

[4] The first accused is 26 years of age with a clear record. He works as a salesman in a telecommunication company earning a small but adequate salary. He is studying part time at Fiji National University for a diploma in Electrical Engineering and will have completed the course by July. He lives with his mother and 2 younger brothers. His mother is supportive.

[5] The second accused is 19 years of age, also with a clear record. He was working part time as a security guard and tells the Court he now wants to study. He says that he was led astray and is very sorry for what he had done. Being held in the remand centre has been a very salutary lesson for him and he is determined to lead a new life away from crime.

[6] In a plea of mitigation, Mr. Patel for the first accused tells me that the offence was totally out of character and he was encouraged by his co-accused during a drinking party. He had indicated that he would plead guilty at an early stage after the disclosures were served on him and after he had taken legal advice.

[7] The maximum penalty for aggravated burglary is 17 years (the aggravation in this case being acting in concert with others) and the maximum for theft is ten years. As this Court said in Tuivawa and Caurani – HAC 29/2010 the range of sentences for aggravated burglary is between 18 months and three years and the theft will nearly always form part and parcel of the same incident thereby attracting a concurrent sentence.

[8] For the burglary, I take a starting point of 24 months imprisonment. There are no aggravating features. For each accused's early plea of guilty I deduct one third leaving a sentence of 16 months. I deduct a further six months for their mitigation and for each accused's clear record leaving a total term of imprisonment to be served of ten months. Ten months to be served concurrently for the theft.

[9] In light of each accused's stated desire to further his studies and to be a useful member of the community, the terms of imprisonment for each of these two accused is to be suspended for a period of two years.

[10] Suspended sentence explained.

Paul K. Madigan
JUDGE

At Lautoka
13 May 2011