Dakunituraga v State [2011] FJHC 490; HAM002.2011 (31 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL MISCELLANEOUS NO: HAM 002 OF 2011

BETWEEN:

JOJI DAKUNITURAGA
APPLICANT

AND:

STATE
RESPONDENT

Counsel: For Applicant - In Person
For Respondent [State] - Ms R. Drau

Date of Hearing: 08 August 2011

Date of Judgment: 31 August 2011

JUDGMENT

[1] The Appellant, Joji Dakunituraga, was charged with the following offences in Cases No. 126 of 2010, 127 of 2010, 128 of 2010, 130 of 2010 and 247 of 2010.

1. Nausori Criminal Case No. 126 of 2010
   

Statement of Offence

BURGLARY: Contrary to section 312(1) of the Crimes Decree No. 44 of 2009 and THEFT: Contrary to section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOJI DAKUITOGA and JOSAIA USUMAKI, on the 21st day of February, 2010 at Nausori in the Central Division entered into the dwelling house of JAGENDRA PRASAD as a trespasser with intent to steal, and did steal from therein, 3 mobile phones valued at $165, cash $80 and assorted jewellery valued at $100 all to the total value of $345 the property of the said JAGENDRA PRASAD.

2. Nausori Criminal Case No. 127 of 2010
   

Statement of Offence

BURGLARY: Contrary to section 312(1) of the Crimes Decree No. 44 of 2009 and THEFT: Contrary to section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOJI DAKUNITURAGA and JOSAIA USUMAKI, on the 13th day of February, 2010 at Sukhee Feeder Road, Nausori in the Central Division entered into the dwelling house of SURENDRA PRASAD as a trespasser with intent to steal, and did steal from therein, 3G mobile phone valued at $400 and cash $100 all to the total value of $500 the property of the said SURENDRA PRASAD.

3. Nausori Criminal Case No. 128 of 2010
   

Statement of Offence

ROBBERY: Contrary to section 310(1)(a)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOJI DAKUNITURAGA and JOSAIA USUMAKI, on the 14th day of February, 2010 at Visama Feeder Road, Nausori in the Central Division stole 1 MP4 Player valued at $99.00, Alcatel mobile phone 01-800 valued at $369.00, Motorolla VB mobile phone valued at $399.00, Nokia 3220 mobile phone valued at $299.00, Alcatel mobile phone valued at $15.00, LG mobile phone valued at $499.00, LG flip mobile phone valued at $299.00, Video Camera valued at $1,500.00, Assorted Ladies and Men's perfume valued at $1,200.00, 7 bottles imported liquor valued at $1,000.00, Assorted jewelleries valued at $10,000.00, Ladies cosmetics valued at $400.00, Babies T/shirt and shoes valued at $500.00, Gents Citizen watch valued at $280.00, 2 ladies handbags valued at $60.00, hair straightener valued at $200.00, new towels valued at $100.00, imitation jewelleries and bangals valued at $200.00 all to the total value of $17,418.00 from KRISHNEEL CHAND, and immediately before stealing, used force on the said KRISHNEEL CHAND.

4. Nausori Criminal Case No. 130 of 2010
   

Statement of Offence

ROBBERY: Contrary to section 310(1)(a)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOJI DAKUNITURAGA and JOSAIA USUMAKI, on the 9th day of February, 2010 at Visama Feeder Road, Nausori in the Central Division stole cash $500 and assorted jewelleries valued at $3,000.00 all to the total value of $3,500 from HASINA BANO, and immediately before stealing, used force on the said HASINA BANO.

5. Nausori Criminal Case No. 247 of 2010
   

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

JOJI DAKUNITURAGA with others on the 29th day of April, 2007 at Kuku, Nausori in the Central Division robbed KADAR HUSSEIN of $2.00 cash, 1 gold Patta valued at $2,500.00, 10 thick gold chain valued at $10,000.00, 22 thick gold bangles valued at $40,000.00, 28 pair gold earrings valued at $5,000.00, 70 diamond gold rings valued at $15,000.00, 5 gold bracelets valued at $1,500.00, 1 gold choka valued at $2,000.00, 1 Nokia brand mobile phone valued at $399.00, 1 Alcatel brand mobile phone valued at $289.00, 2 Titan brand mans wrist watch valued at $200.00, 1 pair of eyeglass valued at 4240.00 and 2 Compac disc valued at $30.00 all to the total value of $77,780.00 and immediately before the time of such robbery did use personal violence to the said KADAR HUSSEIN.

[2] In Cases No. 126 of 2010 and 127 of 2010 on his own plea of guilty, on 17/9/2010 the appellant was convicted and sentenced to 6 years imprisonment to run concurrently with the sentence in Case No. 128 of 2010.

[3] In Case No. 128 of 2010 on his own plea of guilty the appellant was convicted and sentenced to 8 ½ years imprisonment on 17/9/2010.

[4] In Case No. 130 of 2010, on his own plea of guilty the appellant was convicted and sentenced to 8 ½ years imprisonment to run concurrently with the sentence in Case No. 128 of 2010.

[5] In Case No. 247 of 2010, the appellant was convicted on his own plea of guilty and was sentenced to 6 years imprisonment to run concurrently with the sentence imposed in Case No. 128 of 2010 on 17/9/2010.

[6] The Appellant appealed against the said sentences of imprisonment on all 5 cases on the following grounds:

(i) That the sentence is harsh and excessive.

(ii) That the appellant was been kept in remand in the maximum prison, following of being tortured for no sufficient reason which leads the appellant pleading guilty (sic). The reasons were that the appellants rights were being seized which accumulated the appellants not having interview statement, pens, books etc (sic). The fact is that the appellants rights were breached and unfair to the court of law.

(iii) That the grounds for the sentence is prevalent of the class of crime in a particular locality and hence more severe than usual for the offence committed making him more scapegoats for other persons committing similar crimes but have being convicted (sic).

(iv) The learned Magistrate failed to consider the amount of stolen property found and failed to balance the principle of deterrence and rehabilitation.

(v) That the appellant was been kept in remand for 7 months which was not being considered by the court during sentencing (sic).

[7] In Cases No. 126 of 2010 and 127 of 2010, I find both offences of burglary and theft are included in one count. Burglary and theft are two distinct offences and therefore have to be charged on separate counts for separate offences. Although the accused had pleaded guilty to the count in the charge sheet, the charge is bad in law.

[8] The appellant has not taken up this position in appeal. However I bear in mind that the appellant is unrepresented. As burglary and theft are two distinct offences there has to be two separate counts. As the charge is bad in law the conviction could not stand. Therefore I set aside the conviction and sentence in Cases No. 126/2010 and 127/2010.

[9] I order that the Cases No. 126/2010 and 127/2010 to be sent back to the Magistrates Court for retrial to be held with a proper charge with separate counts for separate offences.

[10] In Case No. 128 of 2010, after his own plea of guilty the learned Magistrate convicted the appellant. However the sentencing judgment of the learned Magistrate is:

"Guilty plea and married noted. Not a first offender. The Court sentenced you to 8 ½ years imprisonment to serve concurrent to CF 128/10."

[11] The learned Magistrate has failed to give the reasons for his sentencing or as to how he arrived at the sentence. Therefore he has erred in law in sentencing the appellant. Therefore I set aside the sentence imposed on the appellant by the learned Magistrate and proceed to sentence the appellant.

[12] The facts of the case were that the appellant on 14/2/2010 with another, forcefully entered the house of the complainant and tied up the complainant's hands and walked away with items to the total value of $17,418.00.

[13] The aggravating factors are that the appellant tied up the complainant for him to take and get away with the stolen property. Mitigating factors are that he is married and his early guilty plea. No other mitigating factors mentioned before the learned Magistrate.

[14] The tariff for robbery under the Penal Code (now replaced) was 4 to 7 years imprisonment (State v Tuiyanawai [2005] FJHC 180; HAC 0022.2004S (14 July 2005), Sakiusa Basa [2006] FJCA 23. I take 6 years imprisonment as the starting point, add 5 years for aggravating factors above making a total of 11 years. I deduct 3 ½ years for the early guilty plea and the mitigating factors, making it 7 ½ years.

[15] You are not entitle to a discount for previous good character as you have previous convictions. I further reduce 6 months for your period in remand.

[16] Finally the appellant is sentenced to 7 years imprisonment in Case No. 128/2010 for the charge of robbery. The appellant is to serve a minimum of 6 years imprisonment and he is not eligible for parole during that 6 year period.

[17] The appellant has previous convictions and this warrants immediate custodial sentence.

[18] In Case No. 130 of 2010 after his own plea of guilty the learned Magistrate convicted the appellant. However the sentencing judgment of the learned Magistrate is:

"Guilty plea and married noted. Not a first offender. The Court sentenced you to 8 ½ years imprisonment to serve concurrent to CF 128/10."

[19] The learned Magistrate has failed to give the reasons for his sentencing or as to how he arrived at the sentence. Therefore he has erred in law in sentencing the appellant. Therefore I set aside the sentence imposed on the appellant by the learned Magistrate and proceed to sentence the appellant.

[20] The facts of the case were that the appellant on 9/2/2010 with another forcefully entered the house of the complainant, threatened her with a cane knife and robbed her property and cash to the total value of $3500.00.

[21] The aggravating factors are that the appellant threatened the complainant with a cane knife when committing the offence.

[22] The mitigating factors mentioned before the learned Magistrate were his early guilty plea and that he is married.

[23] The tariff for robbery under the Penal Code (now replaced) was 4 to 7 years imprisonment (State v Tuiyanawai [2005] FJHC 180; HAC 0022S.2004S (14 July 2005), Sakiusa Basa [2006] FJCA 23. I take 6 years imprisonment as the starting point, add 5 years for aggravating factors above making a total of 11 years. I deduct 3 ½ years for the early guilty plea and the mitigating factors, making it 7 ½ years.

[24] You are not entitle to a discount for previous good character as you have previous convictions. I further reduce 6 months for your period in remand.

[25] Finally the appellant is sentenced to 7 years imprisonment in Case No. 130/2010 for the charge of robbery. The appellant is to serve a minimum of 6 years imprisonment and is not eligible for parole during that 6 year period.

[26] Appellant has previous convictions and this warrants immediate custodial sentence.

[27] In Case No. 247 of 2010 after his own plea of guilty the learned Magistrate convicted the appellant. However the sentencing judgment of the learned Magistrate is:

"Guilty plea and married noted. Not a first offender. The Court sentenced you to 6 years imprisonment to serve concurrent to CF 128/10."

[28] The learned Magistrate has failed to give the reasons for his sentencing or as to how he arrived at the sentence. Therefore he has erred in law in sentencing the appellant. Therefore I set aside the sentence imposed on the appellant by the learned Magistrate and proceed to sentence the appellant.

[29] The facts of the case were that the appellant with another entered the house of the complainant from an open window of a bathroom upstairs. When the complainant and his wife woke up the appellant told them not to shout and robbed the items to the total value of $77,280.00.

[30] Aggravating factors are that you did not respect the privacy of the complainant in their own house and that you threatened them not to shout. Your mitigating factors are that you are married and that you pleaded guilty.

[31] The maximum penalty for robbery with violence under the Penal Code (now replaced) is imprisonment for life. The tariff for robbery with violence is 6 to 14 years of imprisonment.

[32] I consider that the appellant has used minimum violence against the complainants. I take 9 years imprisonment as starting point. Add 1 year for aggravating factors. Deduct 3 ½ years for mitigating factors including guilty plea making a total of 6 ½ years. I further deduct 6 months for the period in remand.

[33] You are not entitle for a discount for your previous good behavior as you have previous convictions. Your final sentence is 6 years imprisonment with a non parole period of 5 years.

[34] Appellant has previous convictions and this warrants immediate custodial sentence.

[35] All sentences of imprisonment in Cases No. 130/2010, 128/2010 and 247/2010 are to run concurrently.

[36] Appeal is allowed subject to the above orders.

Priyantha Fernando
JUDGE

At Suva
31 August 2011