State v Kunamave [2012] FJHC 927; HAC003.2012 (9 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 003 OF 2012

BETWEEN:

STATE

AND:

1. RAIVONI KUNAMAVE
Also known as REVONI
[2nd Accused]

2. SAIMONI QAQA Also known as SAI
[3rd Accused]

Ms. S. Puamau for the State
Mr T. Terere [Duty Solicitor] for Both Accused

Date of Hearing: 8th March, 2012.
Date of Sentence: 9th March, 2012.

SENTENCE

1. 2nd and 3rd Accused persons abovenamed were charged by the Director Public Prosecutions as follows:

COUNT 3

Statement of Offence (a)

AGGRAVATED BURGLARY: Contrary to Section 313 (1)(a) of the Crimes Decree, 2009.

Particulars of Offence (b)

RAIVONI KUNAMAVE and SAIMONI QAQA, in company with each other, on the 27th day of December 2011 at Lautoka in the Western Division, entered AHMAD & SONS LIMITED shop building situated at Naviti Street, as trespassers with intent to theft of items contained therein.

COUNT 4

Statement of Offence (a)

THEFT: Contrary to Section 291(1) of the Crimes Decree, 2009.

Particulars of Offence (b)

RAIVONI KUNAMAVE and SAIMONI QAQA on the 27th day of December 2011 at Lautoka in the Western Division, dishonestly appropriated 5 x 4 liter bottles of ghee, Jovan Mush perfumes worth $1,000.00, Rexona deodorants worth $500.00, Gillette shaving gear worth $500.00 and NIVEA products worth $300.00, the property of AHMAD & SONS LIMITED.

2. When the case was called the 2nd and 3rd accused pleaded guilty to all the charges against them. Being convinced with their plea to be unequivocal this court found them guilty and convicted accordingly.

3. Both accused persons admitted the summary of facts submitted by the State Counsel. Re-produced as follows:

"REVONI KUNAMAVE also known as RAIVONI KUNAMAVE (herein the accused) had joined his friends NASONI YALAYALA and SAIMONI QAQA to drink on 27 December 2011. At 7.00pm, the accused and two friends left the drinking party at Vunato and walked to Lautoka town.

Count 3

The accused persons Mr Raivoni Kunamave and Mr Saimoni Qaqa and a friend then walked along Loma Lane in the Lautoka town. They stopped at the back entrance to AHMAD & SONS LIMITED, which is a shop situated in a building. The back gate was opened as a result of a break-in that had happened the night before. The accused Mr Kunamave and Mr Qaqa in company with his friend walked into the compound to the store. When they approached the back door to the store, the back door was open as a result of a break-in the previous evening. The accused, Mr Kunamave and Mr Qaqa in company with another friend then walked into the shop. The accused's went to the shop with the clear intent to steal items contained in the shop. The accused's and his friend intended to steal items from the shop and thereafter, sell the proceeds of break-in and use the cash from the sales to purchase more drinks.

Count 4

Inside the shop, the accused persons picked up 3 packets of Punjas Ghee and left the shop. In total the accused persons and his friend between them, took:

1. 5 x 4 liter bottles of ghee.

2. Jovan Musk perfumes worth $1,000.00

3. Rexona deodorants worth $500.00.

4. Gillette shaving gear worth $500.00 ad

5. Nivia products worth $300.00.

the property of AHMAD & SONS LIMITED.

The accused person was interviewed by the Police on 29 December 2011 and he admitted to breaking in to Ahmad & Sons Limited's shop with the intent to steal items therein and he further, admitted to taking items contained therein." (sic)

4. 2nd Accused, Raivoni Kunamave and 3rd Accused, Saimoni Qaqa you stand convicted as follow:

(i) Aggravated Burglary punishable under Section 313 (1)(a) of the Crimes Decree.

(ii) Theft punishable under Section 291(1) of the Crimes Decree.

5. Section 313 (1) prescribes a maximum sentence of 17 years imprisonment.

6. Section 291 (1) of the Crimes Decree prescribes a maximum sentence of 10 years imprisonment.

7. Considering the tariff to the offence of Aggravated Burglary was discussed in Maharaj v The State (2011) FJHC 373; HAA 014.2011 and Tomasi Turuturuvesi v State (2002) AAA 86/02S according to these cases the tariff is between 18 months and 3 years imprisonment.

8. Tariff for Theft was discussed in Niudamu v The State (2011) FJHC 661; HAA 028.2011 (20th October 2011) the tariff set was 2 – 9 months. In Chand v State (2007) FJHC 65 HAA30.2007. Mataitoga J affirming the tariff of Larceny is with range of 2 to 3 years.

9. Considering the relevant sections in the Crimes Decree and the tariff, the sentences commenced as follows:

1. Aggravated Burglary – 2 years imprisonment.

2. Theft – 12 months imprisonment.

10. Considering the aggravating factors:

(a) Entering business shop in the town.

(b) These type of burglaries or thefts make the business community insecure.

(c) Both were under the influence of liquor.

Considering the above factors the Sentence is increased by 6 months. Now your sentence is as follows:

1. Aggravated burglary – 2 years 6 months.

2. Theft – 18 months.

11. Considering the mitigating circumstances for the 2nd accused Raivoni Kunamave:

(a) 26 years old youth.

(b) Married with 2 small children

(c) 1st offender

(d) Employed as part time market surveyor

(e) Sole bread winner

(f) Remorseful

(g) Pleaded guilty at the 1st available opportunity

(h) Period in remand.

Considering above factors your sentence is reduced by 14 months. Now your sentence is 16 months imprisonment.

12. Considering the mitigating circumstances of the 3rd accused Saimoni Qaqa

(a) 38 years old married with 3 young children.

(b) Sole bread winner.

(c) Pleaded guilty at the 1st available opportunity.

(d) Period in remand.

Considering the above circumstances your sentence is reduced by 12 months. Now your sentence is 18 months imprisonment.

13. Counsel from the Legal Aid Commission assisted the court as Duty Solicitor, on the invitation of the court, pleading with the court to show leniency in sentencing the accused persons.

14. Considering the facts of the case especially both incident happened in the same course of transaction this court orders both sentences for the aggravated burglary and theft to run concurrently.

15. Section 26(1) of the Sentencing and Penalties Decree states as follows:

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances."

16. The 2nd accused Raivoni Kunamave is a first offender. Considering all materials before the court this court decides to act under section 26(1) of the Sentencing and Penalties Decree and suspend the sentence for 3 years.

17. The 3rd accused Saimoni Qaqa has 8 previous convictions out of which 3 are within the operational period. Considering all, especially Section 26 of the Sentencing and Penalties Decree this court decides as follows:.

The 3rd accused will be imprisoned for a period of 3 months and the balance 15 months will be suspended for a period of 5 years.

18. In addition to the above sentences both accused persons should pay a fine of $250.00 each in default 2 months imprisonment.

19. Summary of sentences:

(i) 2nd accused Raivoni Kunamave – 14 months imprisonment suspended for 3 years. In addition to the above you are imposed of a fine of $250.00 in default 2 months imprisonment.

(ii) 3rd accused Saimoni Qaqa – you are imposed of 18 months imprisonment out of which 3 months you will be imprisoned the balance of 15 months is suspended for a period of 5 years. In addition to the above you are imposed of a fine of $250.00 in default 2 months imprisonment.

20. The nature and the consequences of the suspended sentences are explained to both accused persons.

21. 30 days to appeal.

S. Thurairaja
JUDGE

At Lautoka
9th March, 2012.