State v Donumaivanua [2013] FJHC 49; HAC259.2012 (15 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC259 of 2012

BETWEEN:

THE STATE

AND:

ISEI DONUMAIVANUA

Counsel : Mr. J. Niudamu for State
Accused in person

Dates of Hearing: 25 January & 4 February 2013
Date of Sentence: 15 February 2013

SENTENCE
Multiple Burglary & Theft

[1] The accused entered pleas of guilty to multiple charges of burglary and theft in the Magistrates' Court at first opportunity. There being so many charges to take into consideration the Magistrate sent all files to this Court for sentence.

[2] Although it was unnecessary, the State laid an information against the accused in this Court, an information which contained 19 counts of burglary and 16 associated counts of theft. The accused entered unequivocal pleas of guilty to each of these counts and admitted an appropriate set of facts. He was therefore found guilty of each count and convicted on each.

[3] The facts disclose a spree of burglaries in the area between Suva and Nausori in March and April 2011 and the items stolen were usually gold jewellery and cash.

[4] The maximum sentence for burglary under the Crimes Decree is thirteen years and the accepted tariff for burglary of domestic premises is three years' imprisonment as this Court stated in the very similar case of Tabeusi HAC95-113 of 2010 in Lautoka.

[5] This particular accused has 25 previous convictions of which 22 are for unlawful invasions of property. I have no hesitation in declaring him to be a habitual offender pursuant to section 11 of the Sentencing and Penalties Decree 2009 and he will be sentenced as such for these offences. He being a habitual offender, I must have regard to the protection of the community and to that purpose I am empowered to impose a sentence longer than otherwise would be the case.

[6] The maximum penalty for theft under the Crimes Decree is a term of imprisonment of 10 years. I will regard the 16 counts of theft he has pleaded guilty to in this case as ancillary to the more serious burglaries and each theft sentence will therefore be concurrent with its associated burglary.

[7] The accused is 32 years old and a labourer. He is married with 3 children, two attending school and a two year old. He has written a moving letter of mitigation to the Court expressing great remorse above all else and making a vow to reform himself that he can be a better father to his young family.

[8] In sentencing for the burglaries I take the usual starting point of three years for a domestic burglary. For the aggravating features of damage to property in many cases and non-recovery of stolen property I add an additional two years to the sentence bringing each burglary sentence up to 5 years. The accused asks for credit for the 6 months he has been remanded for these cases but that application is misconceived. He is a serving prisoner, serving a term of three years imprisonment, so there can be no credit allowed for time awaiting this sentence. For his co-operation and his guilty plea at the first opportunity he was able to I deduct from the five years a period of 20 months meaning that the total sentence for each burglary will be three years and four months imprisonment.

[9] For each of the theft offences he is convicted of, I sentence him to concurrent terms of imprisonment of three years.

[10] All of the sentences for burglary and theft will be served concurrently meaning he will serve a total term for all of the convictions of three years and four months.

[11] The accused is a habitual offender and as such the community must be protected against his propensity to commit crime. In addition to that, this spree of crime must attract a sentence that is separate from and in addition to the time that he is now serving.

[12] I order that one year and four months be served concurrently with his present sentence and that he serve two years consecutive to the term being served.

Paul K. Madigan
JUDGE

At Suva
15 February 2013