State v Vinakasigaduwa [2011] FJHC 77; HAC156.2010 (18 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 156 0F 2010

BETWEEN

STATE
PROSECUTION

AND

MALELI VINAKASIGADUWA
1st ACCUSED

Counsel: Miss M Fong – Counsel for State
Accused in person

Date of Trial/Plea: 11th February, 2011
Date of Sentencing Submissions: 16th February, 2011
Date of Sentence: 18th February, 2011

SENTENCE

1. Maleli Vinakasigaduwa, the 1st Accused in the above case (the accused), stood charged along with two others namely, Mohammed Ilias and Maika Kamikamica, for committing the offences of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) (a) and 291 (1) respectively of the Crimes Decree No 44 of 2009 (the Decree).
   
2. The accused pleaded guilty to the charges. Court, upon being satisfied that the plea in respect of each count was voluntary and free from duress or any influence, proceeded to convict the accused on the plea of guilt.
   
3. The offence of 'Aggravated Burglary', which is indictable, attracts a punishment of 17 year-term of imprisonment, while the summarily triable offence of 'Theft' mandates a punishment upto a 10 year-term of imprisonment under the Decree.
   
4. The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (State v Mikaele Buliruarua) [2010] FJHC 384; (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).
   
5. In Buliruarua's case (supra), the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Burglary' under the Decree.
   
6. I would accordingly adopt the same tariffs for the offences of 'Burglary' and 'Theft' under the Decree in this case.
   
7. Facts, as admitted by the accused, revealed that the accused along with the other two had left the shores of Lautoka in a boat owned by Ilias (the second accused) for fishing around 11.00 a.m. on 04.12.2010. They made their stop at the Resort in Bekana Island apparently to fill-up the boat with water. In the course of their stop-over, they got into the premises of the Bekana Island Resort and removed a brush-cutter, a radio, two tents and a towel, which subsequently became the subject matters of theft under count (2).
   
8. The Bekana Island Resort, which has been closed since 2008, was being looked after by two caretakers. Upon information given by Kini Tuipeleaki, one of the caretakers, the accused along with his two companions were apprehended by police on 4th December, 2010 itself. Police recovered all stolen items from the possession of the accused and the other two co-accused.
   
9. There exists no evidence on the use of any force or any weapons of offence. There is also no evidence on any damage being caused to the property or injury or harm to any person. I, therefore, find no material to constitute any aggravating circumstances. The act of burglary in this case, instead, has crystallized into its aggravated form in view of the fact that the offence was committed by the accused whilst being a member of a group. The penal provisions under the Decree have provided for an enhanced punishment for such aggravation occasioned by group offending and; as such, this court does not require attaching any further weight to bolster-up aggravation.
   
10. The accused is only 36 years of age. He is married and having three children who are attending schools. He informed court that he was the only breadwinner in the family and his children would go destitute if he is further incarcerated.
    
11. The Case Record reveals that the accused had been on remand for nearly 11 weeks for this offence. He states that the offence was resulted due to a thought that sprang-up on the spur of the moment and pleads for forgiveness enabling him to get into the mainstream of the society again. Moreover, the accused repents over the crime committed and pledges that he would not reoffend.
    
12. There was no evidence on pre-planning of the offence. Instead, it appears that the accused, along with his two co-accused, had been enticed to the commission of the offence by the attending circumstances at the relevant point of time at the scene of crime, while they were setting-forth for fishing. While court is fully mindful of the fact that such temptation offers no legal justification for commission of the crime, it would, however, operate as a factor to mitigate the sentence.
    
13. In the circumstances, I consider it just to commence your sentence from the lower point of tariff being 18 months for the offence of 'Aggravated Burglary'. I am inclined to give substantial weight to your very early guilty plea, which reflects your true remorse. Accordingly, I reduce 6 months for your plea of guilt and arrive at 12 month period of imprisonment. I further reduce 3 months for the period that you have been on remand from the date of arrest, being 4th December, 2010 and arrive at 9 month period of imprisonment. A further reduction of 3 months is given considering your occupational and social background. Your ultimate sentence for the offence of burglary under count (1) is set as 6 month-imprisonment.
    
14. As regards the offence of 'Theft', I consider it just to commence your sentence from 18 month-imprisonment. I am inclined to give substantial weight to your very early guilty plea, which reflects your true remorse. Accordingly, I reduce 6 months for your plea of guilt and arrive at 12 months period of imprisonment. I further reduce 3 months for the period that you have been on remand from the date of arrest, being 4th December, 2010 and arrive at 9 month period of imprisonment. You have co-operated with the police in the course of investigations against you resulting in the recovery of stolen items for which I give you a further reduction of 3 months and arrive at a 6 month period of imprisonment. Your ultimate sentence for the offence of theft under count (2) is 6 month-imprisonment.
    
15. The accused informed court that he has had a previous conviction in 1999 for a similar offence and that he kept away from offending up until he was apprehended for this offence.
    
16. Upon a record being called for from the Criminal Records Office on 16.02.2011, it came to light that the accused had been sentenced to two years imprisonment for the offence of 'Shop Breaking, Entering and Larceny' in 1999. He had also been sentenced to three years imprisonment for an offence of 'Robbery with Violence' in 1999. The record further shows that the accused had been punished for the offences of 'Larceny from Ship' (1996), 'Robbery with Violence' (1993), Larceny from Person (1993). He was also sentenced for the offences of 'Resisting Arrest' (1999 and 1996).
    
17. Despite the above antecedents blemished with a criminal record, the accused made a strong plea in mitigation that further opportunity be afforded for him to be in the mainstream of the society in order to look after his small children. He was forcefully saying that he had committed no crime effectively for last nine years.
    
18. I have considered the desirability of imposing suspended sentences in this case in light of the past criminal record of the accused as set-out above.
    
19. Facts of the case, as shown above, do not reveal violent offending as such to fit into the criteria that warrant immediate custodial sentence. Past criminal record beyond 1999, would not impact either on imposing a custodial term particularly because the accused had stayed away from crime for last nine years. I am, therefore, of the view that it would be appropriate to suspend the operation of each of the sentence as provided for under Section 26(1) of the Sentencing Decree for the accused to be able to inculcate some self-reformism, while furthering his family life. This conclusion is reached especially in light of the fact that offences in this case had not involved violence, physical injury to property or to any person.
    
20. I accordingly order that:
    
    • (i) That the accused be sentenced to 6 months imprisonment in respect of the offence of 'Burglary' punishable under Section 313 (1) (a) of the Decree.
      

The operation of the term of imprisonment is suspended for ten (10) years from today.

(ii) That the accused be sentenced to 6 months imprisonment in respect of the offence of 'Theft' punishable under Section 291(1) of the Crimes Decree.

The operation of the term of imprisonment is suspended for ten (10 ) years from today.

21. The purpose and the effect of the suspended terms are explained to the accused along with the consequences of their breach under Section 26 (3) of the Sentencing Decree. If an offence punishable with a term of imprisonment is committed, the two suspended terms shall begin to run consecutively making a total of 12 month-imprisonment in addition to the sentence that the accused may get for the subsequent offence. The accused is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended sentences is an offence itself against Section 28 of the Sentencing Decree for which he could be arraigned and punished by court.
    

PRIYANTHA NAWANA

JUDGE
HIGH COURT, LAUTOKA