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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 012 AND HAC 013 OF 2012
BETWEEN
STATE
AND:
1. MAIKA KAUFUSI
1st Accused
2. PAULA BETE
2nd Accused
3. PAULA CAGICOLO
3rd Accused
4. SIMIOINE SMITH
4th Accused
5. OSCAR KAMI
5th Accused
6. URAIA TUISUVA
6th Accused
7. TIMOCI QIO
7th Accused
8. NETAVA RATUBULI
8th Accused
Counsels : Mr T. Qalinauci for State
Ms. Savou for 1st, 3rd Accused
Mr. Naidu instructions from Mr Nacolawa for the 2nd Accused
4th, 5th, 6th, 7th and 8th Accused in Person
Date of Sentence : 4th May, 2012
SENTENCE
1. There are two cases filed against these accused persons together with other accused persons. When their cases were taken up for taking of Plea 1, 3, 4, 5, 6, 8 accused persons above named pleaded guilty to the charges and filed their submission to mitigate the sentence. Both submissions in two cases are very similar to each other. Since the nature of offence and many other factors are similar; both sentences were discussed in one sentencing order.
2. The Director of Public Prosecution had preferred the following charges in HAC 12/2012.
FIRST COUNT
Statement of Offence
AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Decree No 44 of 2009.
Particulars of Offence
MAIKA KAUFUSI, PAULA BETE and PAULA CAGICOLO, in company with each between the 19th November and 20th November, 2011, at Vatusui, Ba in the Western Division, entered into a building namely the Vatusui Telecom Radio station as trespassers with intent to commit theft of batteries and copper cables therein.
SECOND COUNT
Statement of Offence
THEFT: Contrary to Section 291(1), (2) of the Crimes Decree, No. 44 of 2009.
Particulars of Offence
MAIKA KAUFUSI, PAULA BETE and PAULA CAGICOLO, between the 19th
November and 20th November, 2011, at Vatusui, Ba in the Western
Division, dishonestly appropriated 15 batteries valued at $22,400 and
copper cables valued at $1,000.00, all to the total value of $23,400.00, the
property of Vodafone Fiji Limited.
THIRD COUNT
Statement of Offence
THEFT: Contrary to Section 291 (1), (2) of the Crimes Decree No 44 of 2009.
Particulars of Offence
MAIKA KAUFUSI, PAULA BETE and PAULA CAGICOLO, between the 19th November and 20th November, 2011, at Vatusui, Ba in the Western Division, dishonestly appropriated 1 x battery valued at $400.00 and copper cables valued at $200.00, all to the total value at $600.00, the property of Telecom Fiji Limited.
FOURTH COUNT
Statement of Offence
RECEIVING STOLEN PROPERTY: Contrary to section 306 of the Crimes Decree, No. 44 of 2009.
Particulars of Offence
SIMIONE SMITH, between the 20th November, 2011 and 21st November, 2011, at Vatusui, Ba in the Western Division, dishonestly received 14 batteries and copper cables, the properties of Vodafone Fiji Limited and 1 battery and copper cables the properties of Telecom Fiji Limited, and at the time of receiving, SIMIONE SMITH knew that the said batteries and copper cables were stolen properties.
3. In HAC 13 of 2012 the Director of Public Prosecution had preferred the following charges against the accused persons:
FIRST COUNT
Statement of Offence
THEFT: Contrary to Section 291(1) and (2) of the Crimes Decree No 44 of 2009.
Particulars of Offence
OSCAR KAMI, PAULA CAGI, URAIA TUISUVA, TIMOCI QIO and MAIKA KAUFUSI, between the 10th August, 2011 and 11th August, 2011, at Nasolo, Ba in the Western Division, dishonestly appropriated 1000 meters of copper cables valued at $14,750.00, the property of Telecom Fiji Limited.
SECOND COUNT
Statement of Offence
THEFT: Contrary to Section 291(1) and (2) of the Crimes Decree, No. 44 of 2009.
Particulars of Offence
PAULA BETE, URAIA TUISUVA and MAIKA KAUFUSI between the 19th October and 20th October, 2011, at Vatulaulau, Ba in the Western Division, dishonestly appropriated copper cables valued at $7,100.00, the property of Telecom Fiji Limited.
THIRD COUNT
Statement of Offence
THEFT: Contrary to Section 291 (1) and (2) of the Crimes Decree No 44 of 2009.
Particulars of Offence
OSCAR KAMI, PAULA CAGI, MAIKA KAUFUSI and PAULA BETE, between the 7th November, 2011 and 8th November, 2011, at Racecourse Road, Namosau, Ba in the Western Division, dishonestly appropriated copper cables valued at $39,000.00, the property of Telecom Fiji Limited.
FOURTH COUNT
Statement of Offence
THEFT: Contrary to Section 291 (1) and (2) of the Crimes Decree, No. 44 of 2009.
Particulars of Offence
OSCAR KAMI, PAULA CAGI, PAULA BETE and NETAVA RATUBULI between the 14th November, 2011 and 15th November, 2011, at Yalalevu, Ba in the Western Division, dishonestly appropriated copper cables valued at $3,737.50, the property of Telecom Fiji Limited.
FIFTH COUNT
Statement of Offence
THEFT: Contrary to Section 291 (1) and (2) of the Crimes Decree, No. 44 of 2009.
Particulars of Offence
PAULA CAGI and MAIKA KAUFUSI between the 18th November, 2011 and
19th November, 2011, at Navatu, Ba in the Western Division, dishonestly
appropriated copper cables valued at $200.00, the property of Telecom
Fiji Limited.
4. When the case HAC 12/2012 was mentioned to take Plea 1st accused Maika Kaufusi, 3rd accused Paula Cagicolo, 4th accused Simione Smith pleaded guilty and admitted the summary of facts. After all consideration, all 3 accused persons above mentioned were found guilty and convicted as charged.
5. In case number HAC 13/2012 1st accused Oscar Kami, 2nd accused Paula Cagi and 3rd accused Uraia Tuisuva, 6th accused Maika Kaufusi, 8th accused Netava Ratubuli
were pleaded guilty to the charges and admitted summary of facts. Being convinced with their Plea all 5 accused persons above-mentioned
were found guilty and convicted as charged.
6. Section 313(1) of the Crimes Decree prescribes a maximum sentence of 17 years imprisonment for the offence of Aggravating Burglary.
7. Section 291 of the Crimes Decree prescribes maximum sentence of 10 years imprisonment for the offence of Theft.
8. Section 306 of the Crimes Decree prescribes a maximum sentence of 10 years for the offence of Receiving Stolen Property.
9. Considering the tariff for the offence of Aggravated Burglary in Tomasi Turuturuvesi v State (2002) HAA 86/02S the Court accepted between 18 months to 3 years as Tariff.
10. Tariff for the offence of theft was discussed in several cases. In Waisale Vakarauvanua v State (2002) FJHC 116; HAA 51J.2004S the Court accepted between 2 to 9 months as tariff for simple theft.
11. In State v Qarasaumaki [2011] FJHC 283; HAC 096.2009S, his Lordship Justice Temo discussed about the tariff of Receiving Stolen Property and accepted between 1 year to 3 years imprisonment.
12. Considering the nature of the offence especially the items was stolen from government institution, I commence your sentence as 3 years imprisonment for the offence of Aggravated Burglary.
13. I commence your sentence for the offence of Theft at 9 months imprisonment.
14. For the offence of Receiving Stolen Property I commence your sentence at 1 year imprisonment.
15. Considering both the Aggravated Burglary and Theft took place in the same cause of transaction. Both sentences will be implemented concurrently.
16. Considering the Aggravating Factors:
(a) This was an organized crime.
(b) High value items were stolen.
(c) Items were stolen from Government Institution.
(d) Part of the cables were not recovered.
Considering all aggravating factors, I increase your sentence by 2 years. Now your sentence reads as follows:
(i) HAC 12/2012 your sentence will be 5 years imprisonment.
(ii) HAC 12/2012 your sentence for Receiving Stolen Property will be 3 years.
(iii) In HAC 13/2012 your sentence will be 2 years and 9 months.
17. Considering the mitigating circumstances of Maika Kaufusi:
(a) You are 1st offender.
(b) You are 30 years old fisherman.
(c) You are married with 2 very young children.
(d) Sole bread winner of your family.
(e) You are remorseful.
(f) Your period in remand – (5 months).
(g) You seek forgiveness.
(h) You had pleaded guilty at a very early stage of the case.
(i) You are willing to reimburse part of the loss.
Considering all your mitigating circumstances I reduce 2 years from your sentence. Now your sentence stands as follows:
HAC 12/2012 - 3 years imprisonment.
HAC 13/2012 - 9 months imprisonment.
18. Considering the mitigating circumstances of Paula Cagicolo:
(a) You are 1st offender.
(b) You have pleaded guilty at a very early stage of the case.
(c) You are remorseful.
(d) You have co-operated with the authorities.
(e) You seek forgiveness.
(f) You are willing to reimburse part of the loss.
(g) You are 23 years old.
(h) Period in custody – (5 months).
Considering all I reduce your sentence by 2 years imprisonment.
Now your sentence reads as follows:
(i) HAC 12 of 2012 - 3 years imprisonment.
(ii) HAC 13 of 2012 - 9 months imprisonment.
19. Considering the mitigating circumstances of Simione Smith:
(a) You have pleaded guilty at very early stage of the case.
(b) You have co-operated with the authorities.
(c) You are 30 years old.
(d) You are married with a young child.
(e) You claim all items were recovered from your custody.
(f) You are remorseful.
(g) You are studying.
(h) Period in remand – (5 months).
Considering all, your sentence is reduced by 2 years. Now your sentence is 1 year imprisonment.
20. Considering mitigating circumstances of Oscar Kami:
(a) You have pleaded guilty to the charge at very early stage;
(b) You are remorseful;
(c) You are married with a young child;
(d) You are the sole bread winner;
(e) You are 29 years old;
(f) Period in remand – (5 months);
(g) You are willing to reimburse part of the loss.
Considering all, I reduce your sentence by 1 year and 9 months. Now your sentence is 1 year imprisonment.
21. Considering the mitigating circumstances of Uraia Tuisuva:
(a) You are 26 years old;
(b) Married with a young child;
(c) You have pleaded guilty at a very early stage of the case;
(d) You are employed;
(e) You are the sole bread winner;
(f) You are remorseful;
(g) You are willing to reimburse part of the loss.
Considering all, I reduce your sentence by 1 year and 9 months. Now your sentence is 1 year imprisonment.
22. Considering the mitigating circumstances of Netava Ratubuli:
(a) You are 21 years old;
(b) You are 1st offender;
(c) You are student;
(d) You are remorseful;
(e) You seek forgiveness;
(g) Period in custody – (5 months).
Considering all, I reduce your sentences by 2 years 3 months. Now your sentence is 6 months imprisonment.
23. All the accused persons pleaded with the Court to impose a non-custodial sentence. After carefully considering to all circumstances I act under Section 26(1) of the Sentencing and Penalties Decree I suspend your sentence for a period of 5 years.
24. The State Counsel is not very helpful in submitting the actual loss caused to the complainant. Even the additions submitted to court are incorrect.
25. The accused persons disputed the amount and submitted that the amount
loss was about $18,487 not $61,900.00.
26. Considering all I act under Section 31(1) of the Sentencing and Penalties Decree and impose fine as follows:
In HAC 12 of 2012
1st Accused Maika Kaufusi - Fine of $500 indefault 2 months Imprisonment.
3rd Accused Paula Cagicolo - Fine of $500 indefault 2 months imprisonment.
4th Accused Simione Smith - Fine of $500 indefualt 2 months imprisonment.
In HAC 13 of 2012:
1st Accused Oscar Kami - Fine of $3,000 indefault of 11 months imprisonment.
2nd Accused Paula Cagicolo - Fine of $3,000 indefault of 11 months imprisonment
3rd Accused Uraia Tuisuva - Fine of $3,000 indefault of 11 months imprisonment.
6th Accused Maika Kaufusi - Fine $3,000 indefault of 11 months imprisonment.
8th Accused Netava Ratubuli - Fine of $3,000 indefault of 11 months imprisonment.
27. The Accused Persons are given 5 months to pay the fine in 5 installments.
1st installment of $700 to be paid on 21/5/2012.
2nd installment of $700 to be paid on 20/6/2012.
3rd installment of $700 to be paid on 20/7/2012.
4th installment of $700 to be paid on 20/8/2012.
5th and final installment of $700 to be paid on 20/9/2012.
This case will be mentioned and all these days to check the payment
28. In summary:
| (a) Maika Kaufusi- (b) Paula Cagicolo- (c) Simione Smith- (d) Oscar Kami- (e) Uraia Tuisuva – (f) Netava Ratubuli- | HAC 12 of 2012 HAC 13 of 2012 HAC 12 of 2012 HAC 13 of 2012 HAC 12 of 2012 HAC 13 of 2012 HAC 13 of 2012 HAC 13 of 2012 | - 3 years imprisonment with fine of f $500 indefault 2 months imprisonment. – 9 months imprisonment with a fine of $3,000 indefault 11 months imprisonment. – 3 years imprisonment with a fine of $500 indefault 2 months imprisonment. – 9 imprisonment with a fine of $3,000 indefault 11 months imprisonment – 1 year imprisonment with a fine of $500 indefault 2 months imprisonment. – 1 year imprisonment with a fine of $3,000 indefault 11 months imprisonment. – 1 year imprisonment with a fine of $3,000 indefault 11 months imprisonment. – 6 months imprisonment with a fine of $3,000 indefault 11 months imprisonment. |
All these imprisonment other than the fine default imprisonment are suspended for a period of 5 years. The nature and consequence of the suspended sentence is explained to the Accused Persons in English and iTaukei.
21. 30 days to appeal to Court of Appeal.
S. Thurairaja
Judge
At Lautoka
4th May, 2012.
Solicitors : The Office of the Director of Public Prosecution for State
Legal Aid Commission for the 1st & 3rd Accused Persons
Nacolawa & Company for the 2nd Accused
4th, 5th, 6th, 7th and 8th Accused all in Person
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