State v Seru - Sentence [2015] FJHC 528; HAC426.2012 (6 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 426 of 2012

BETWEEN:

STATE
Prosecution

AND:

MAIKELI SERU
Accused

Counsel:
Mr. M. Vosawale & Ms. L. Bogitini for the State
Mr. P. Tawake of LAC for the Accused

Date of Sentence:6th July 2015

SENTENCE

[1] Mr. Maikeli Seru, you are before this Court for sentence, after being convicted to the charges of Aggravated Burglary and Theft, contrary to sections 313(1)(a) and 291 of the Crimes Decree 44 of 2009 .

[2] You pleaded not guilty to above charges. The ensuing trial lasted for four days in this Court during which, the complainant, Seru Netani and several Police officers gave evidence for the Prosecution. You, your wife and her aunt gave evidence for Defence.

[3] At the conclusion of trial; this Court, having reviewed the evidence and its summing up, decided to accept the unanimous opinion of the assessors and found you guilty and convicted you of the said charges.

[4] The following facts were proven in evidence during the trial.

1. You, with another, entered into the pawn shop run by Dharmendra Prasad and removed several articles to the total value of $ 1075.00. You have exchanged a laptop, taken from the pawn shop, for a carton of beer with Seru Netani, on evening of 20th March 2011.
   
2. You and another had entered into the pawn shop by breaking into it from a window fixed to its rear door and had left the shop by its rear door, after opening it and its grille, using force.
   

[5] According to section 313 of the Crimes Decree No. 44of 2009, the maximum punishment for Aggravated burglary is Imprisonment for17 years. The sentence for offence of Theft as lay down in section 291 of the Crimes Decree No. 44of 2009, is imprisonment of 10 years.

[6] The sentencing tariff for Aggravated burglary was set in State v Mikaele Buliruarua [2010] FJHC 384, as imprisonment ranging from 18 months to three years.

[7] In relation to the offence of Theft, the sentencing tariff is set between 2 to 9 months by the judgment of Vakarauvanua v The State [2004] FJHC 116,and only on a second conviction, a sentence in excess of 9 months can be considered. In laying down the tariff, it had considered the following considerations and precedents, which could be utilised in respect of sentencing offenders who are punished forrepeated offences.

"The tariff for a first conviction for simple larceny is 2-9 months imprisonment (Ronald Vikash Singh v. State HAA0035 of 2002, and Josevata Taucilagi v. The State Crim. App. No.HAA0096 of 2002S). On a second conviction, a sentence in excess of 9 months imprisonment (the length being dependent on the value of the goods stolen and the circumstances of the stealing) is appropriate. Suspension should be considered for first offenders especially in cases of petty thei>

[8] Y[8] You have entered the pawn shop with another, with whom you agreed to burglarise it. Having entered you have ransacked the place, removed valuables and; in leaving, caused damage its rear door and grille. The complainant had to answer the owners for these items. He felt bad when his shop was burglarised.

[9] The prosecution moves this Court to consider the contents of the antecedent report, according to which you had two previous convictions of Larceny during the past ten years. The prosecution invites this Court to treat you as a habitual offender, in respect of the count of Aggravated Burglary as per provisions of sections 10 and 11 of the Sentencing and Penalties Decree. The prosecution further moves this Court to consider you as a threat to society and sentence you accordingly.

[10] You moved this Court to disregard the two previous convictions as the time gap between commission of this offence and the last is seven years. You also moved this Court to consider the second charge as a part of the first count as it is repetitive in relation to the offence committed. You invited this Court to consider an imposition of suspended term of imprisonment.

[11] In deciding whether you are a habitual offender, this Court guides itself with the provisions sections 10 and 11 of the Sentencing and Penalties Decree and of following guidelines laid down inViliame Cavuilagi v. State Crim. App. No. HAA0031 of 2004,by Winter J and later adopted in Vakarauvanua v The State(supra);

"Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society's needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second society is entitled to side-line or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreak havoc on the lives of law abiding citizens. Third offenders deserve punishment that fits the circumstances of the crime."

[11] This is your third burglary within the last 10 ten years and have thereby violated property rights of these law abiding citizens of our society. You have failed to reform yourself from the two previous instances of leniency shown by the Courts. After seven years since the last opportunity, you have repeated the same offence for the third time, indicating strongly that leniency shown by Court is powerless to rehabilitate you. You have shown that you are a threat to society as you chose to violate legally protected rights of citizenry at will. You have not offered any special circumstances to motivate this Court to consider otherwise. In the circumstances, this Court considers you as a habitual offender as per section 11(1) of Sentencing and Penalties Decree.

[12] Considering the above circumstances, I commence your sentence at 30 months of imprisonment for the charge of Aggravated burglary.

[13] The aggravating factors are:

(i) You have planned this burglary with another,

(ii) You used force when braking into as well as in leaving the premises after burglary,

(iii) You have targeted this particular business,

(v) Non recovery of the stolen items, which you admitted to have been removed; as the several whales' teeth, which were recovered during investigations, could not be traced to the complainant.

(vi) You have instilled insecurity in the minds of other citizens with your illegal actions.

[14] I add 12 months for above aggravating factors. Now your sentence is 42 months.

[15] The mitigating factor is that the total value of the items is just over $ 1000.00.

[16] I deduct 2months for the above mitigating factor. Now the sentence is 40 months.

[17] In compliance with the "one transaction rule" imposed by Supreme Court in Wong Kam Hong v The State, (unreported Criminal Appeal No. CAV0002 of 2003S; 23 October 2003), I impose twelve month sentence of imprisonment in respect of the count of Theft and make it run concurrent to the sentence already imposed on you in respect of Aggravated Burglary.

[18] You were in remand for this case for a total period of six months. The judgment of Bavoro v State [2013] FJHC 1, recognised that an "appropriate reduction in the sentence to reflect the appellant's remand period" could be made under section 24 of the Sentencing and Penalties Decree No. 42 of 2009. Considering the duration of the period you spent in remand, I make a reduction of six months from the period of imprisonment, imposed on you. This reduction brings your term of imprisonment down to 34 months.

[19] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 30 months of non- parole period.

[20] Your sentences are as follows:

(i) Count of Aggravated Burglary – 34 months of imprisonment
(ii) Count of Theft – 12 months of imprisonment

Summary
[21] You are sentenced to 34months of imprisonment. You will not be eligible for parole until you complete serving 30 months of your imprisonment.

[22] You have 30 days to appeal to the Court of Appeal.

Achala Wengappuli
Judge
At Suva

Solicitors:
Office of the Director of Public Prosecutions
Legal Aid Commission