State v Batimudramudra [2015] FJHC 495; HAC115.2013S (3 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 115 OF 2013S

STATE

vs

JALESI BATIMUDRAMUDRA

Counsels : Mr. T. Qalinauci for State
Accused in Person
Hearings : 29 and 30 June, and 1 July, 2015
Summing Up : 2 July, 2015
Judgment : 2 July, 2015
Sentence : 3 July, 2015

SENTENCE

1. In a judgment delivered yesterday, the court found you guilty and convicted you on the following information:
   

FIRST COUNT
Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JALESI BATIMUDRAMUDRA with another on or about the 3rd day of March 2013, at Lot 61 Mead Road, Tamavua, in the Central Division, entered into the dwelling house of KENNETH JOHN McHUGH as a trespasser with intent to steal from therein.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

JALESI BATIMUDRAMUDRA with another on or about the 3rd day of March 2013, at Lot 61 Mead Road, Tamavua, in the Central Division, dishonestly appropriated 1 grey Apple iPod with charger and earphones worth $800.00, 1 E-Machine laptop worth $1,200.00, 1 black Verbatim hard drive with USB cable worth $200.00, 1 Sony Video Camera with hard drive, charger and camera bag worth $1,800.00, 1 Nokia mobile phone with grey cover and black base worth $400.00, 1 Audio to Go MP3 Player worth $500.00, 2 earphones, 2 HP Black Print cartridges, 2 black and white cables, 2 black Billabong beach towels worth $280.00, 1 blonde hair wig worth $1,600.00, 1 Elizabeth Arden perfurme worth $150.00, 1 Rockwave gents aftershave worth $150.00, 3 pairs of white socks worth $90.00, 1 black Billabong bag with bluish grey checks worth $195.00, 1 black carryon bag worth $200.00, 1 pair of white, grey and blue New Balance joggers worth $190.00, 2 sports shirts worth $130.00, 1 blue and white Bula Shirt worth $20.00, 1 Electric Rose spray, 1 pair 9kt diamond studs worth $100.00, 1 pair round shaped gold diamond earrings worth $1,400.00, 1 gold drops diamond pendant worth $800.00, 1 gold rope chain worth $1,000.00, 1 gold rope bracelet worth $800.00, 1 gold ring with 4 diamonds and 1 sapphire worth $1,000.00, 1 pair gold Euro Ball drop earrings worth $400.00, 1 gold Belcher Link chain $3,400.00, 1 gold Belcher Link bracelet worth $2,000.00, 1 gold and diamond Sovereign coin worth $5,000.00, 1 oval shaped gold locket with family photo worth $500.00, 1 flat gold chain worth $800.00, 1 pair silver Euro Ball drop earrings worth $80.00, 1 pair white pearl and diamond earrings worth $500.00, 1 pair sapphire earrings worth $800.00, 1 plain gold ring with designs worth $200.00, 1 pair gold and diamond loop earrings worth $600.00, 1 Seiko gold plated wrist watch with inscriptions "To Frank" worth $500.00, Australian currency valued at AUD100.00, Fijian currency valued at FJD60.00, a total value of approximately FJD27,945.00, all properties of KENNETH JOHN McHUGH, with the intention to permanently deprive the said KENNETH JOHN McHUGH of the said properties.

2. The brief facts were as follows. On or about 3 March 2013, you and another person broke into the complainant's dwelling house as trespassers, with intent to steal therefrom. You and the other person ransacked the house, and stole the properties, as itemized in Count No. 2. You were later arrested by police and charged as outlined in Count No. 1 and 2.
   
3. In State v Josevata Lesumailodoni, Criminal Case No. HAC 094 of 2013S, I said the following, "...As I have said in State v Josese Caginaliwalala & Others, Criminal Case No. HAC 293 of 2011S, High Court, Suva and State v Peni Vulisoko & Another, Criminal Case No. HAC 118 of 2013S, High Court, Suva:
   

"..."Aggravated burglary" carried a maximum sentence of 17 years imprisonment (section 313 (1) of the Crimes Decree 2009). In the repealed Penal Code, Chapter 17, "burglary" carried a maximum sentence of life imprisonment (section 299 of Penal Code). In Viliame Gukisuva v The State, Criminal Appeal No. HAA 117 of 2007, High Court, Suva, Her Ladyship Madam Justice N. Shameem, held that the tariff for burglary was a sentence between 2 to 3 years imprisonment.

"Theft" carried a maximum sentence of 10 years imprisonment [section 291 (1) of Crimes Decree 2009]. In the repealed Penal Code, Chapter 17, "simple theft" carried a maximum penalty of 5 years imprisonment; however, if the person had been previously convicted of a felony, the maximum penalty was 10 years imprisonment (section 259 (1) and 262 of the Penal Code). In Navitalai Seru vs The State, Criminal Appeal No. HAA 84 and 85 of 2002S, Her Ladyship Madam Justice Shameem said as follows:

"...the maximum sentence for simple larceny is (on a second conviction) 10 years imprisonment. The tariff, on a first conviction under section 259 and 262 of the Penal Code, is two months to nine months imprisonment (Paula Bale vs The State, Criminal Appeal No. 27 of 1998, Pauliasi Nadali vs The State, Criminal Appeal No. 29 of 1998, Iowane Wainiqolo vs The State, Criminal Appeal No. 44, 45 of 1998, Ronald Vikash Singh Criminal Appeal No. HAA 035 of 2002). It is logical, that on a second conviction the tariff is doubled to four months to 18 months imprisonment, because the statutory maximum increases from five to ten years. I accept this as a tariff in cases of second convictions for larceny..."

In State vs Jona Saukilagi, Criminal Case No. HAC 21 of 2004S, Her Ladyship further said as follows:

"...Stealing from the bank is a serious matter. The tariff for simple larceny on first conviction is 2 – 9 months (Ronald Vikash vs State, HAA 035 of 2002) and on second conviction a sentence in excess of 9 months. In cases of the larceny of large amounts of money sentences of 1 ½ years imprisonment (Isoa Codrokadroka vs State Criminal Appeal No. 67 of 2002) and 3 years imprisonment have been upheld by the High Court (Sevanaia Via Koroi vs The State, Criminal Appeal No. HAA 031 of 2001S). Much depends on the value of the money stolen, and the nature of the relationship between victim and defendant. The method of stealing is also relevant..."

One could see from the above authorities that the accepted tariff for "theft" is a sentence between 2 months to 3 years, depending on the circumstances and facts of the case. However, the actual sentence in the case will depend on the aggravating and mitigating factors..."

4. The aggravating factors were as follows:
   
   • (i) Your offending was well planned and executed. You met your friend, you went down Mead Road looking for a house to break into, you two choose the complainant's house, you broke into the same, ransacked it and committed the offence;
     
   • (ii) Your offending showed you had no respect for other people's property rights. Your attitude to other people's property rights showed you are a threat to the community. Your actions showed you want to take "a free ride on other people's back" by stealing their hard earned properties. You must not complain when your liberty is taken away to pay for your crimes. You need the same as a lesson to respect other people's property rights.
     
5. I can only find one mitigating factor in your case, that is, you had been remanded in custody since 8 March 2013, when you first appeared in the Suva Magistrate Court and that was approximately 2 years 4 months ago.
   
6. On Count No. 1, I start with a sentence of 3 years imprisonment. I add 3 years for the aggravating factors, making a total of 6 years imprisonment. For being remanded in custody for 2 years 4 months, I deduct the same from the 6 years, leaving a balance of 3 years 8 months. On Count No. 1, I sentence you to 3 years 8 months imprisonment.
   
7. On Count No. 2, I repeat the process and sentence in Count No. 1. On Count No. 2, I sentence you to 3 years 8 months imprisonment.
   
8. The prosecution had asked the court to treat the accused as a "habitual offender" under Part III of the Sentencing and Penalties Decree 2009. Section 10(c) of the above Decree permits the court to sentence a person classified as a "habitual offender" under section 11 of the Decree for "offences involving robbery or house breaking". In this case, the accused broke into the complainant's dwelling house at the material time, therefore this case falls within the ambit of Section 10(c) of the Decree.
   
9. Under Section 11(1)(b) of the Sentencing and Penalties Decree 2009, the court is allowed to look at the accused's previous conviction. He was convicted on 28 May 2013 in the Suva Magistrate Court on a burglary charge, and was sentenced to 12 months imprisonment, suspended for 2 years. Obviously this conviction must be for an offending that occurred before 3 March 2013. I therefore determine that the accused is a habitual offender.
   
10. In Sentencing the accused in this case, my sole purpose, in accordance with the mandate given by Section 12 of the Sentencing and Penalties Decree 2009, is to protect the community from the offender. Consequently, I direct that the 3 years 8 months sentence in Count No. 1, be made consecutive to the 3 years 8 months sentence in Count No. 2, making a total of 7 years 4 months imprisonment.
    
11. Mr. Jalesi Batimudramudra, for committing "aggravated burglary" and "theft" on the complainants on 3 March 2013, I sentence you to 7 years 4 months imprisonment, with a non-parole period of 6 years imprisonment, effective forthwith.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Accused in Person