State v Vuetaki - Sentence [2019] FJHC 571; HAC361.2018 (7 June 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 361 of 2018

[CRIMINAL JURISDICTION]

STATE

V

MOSESE VUETAKI

Counsel : Mr. E. Samisoni for State
Ms. T. Kean for Accused
Date of Sentence : 07 June 2019

SENTENCE

1. Mosese Vuetaki, you have pleaded guilty to the charges produced below and were convicted as charged accordingly;

FIRST COUNT

Statement of Offence

AGGRAVATED BURGLARY: contrary to section 313 (1) (a) of the Crimes Act 2009.

Particulars of Offence

MOSESE VUETAKI with another between the 9^th and 10^th September, 2018 at Suva, in the Central Division entered into the property of PRADEEP LAL as a trespasser with intent to commit theft.

SECOND COUNT

Statement of Offence

THEFT: contrary to section 291 (1) of the Crimes Act 2009.

Particulars of Offence

MOSESE VUETAKI with another between the 9^th and 10^th September, 2018 at Suva, in the Central Division dishonestly appropriated 3 x 100ml & 9 x 750ml Bounty Rum bottles, 4 x 750ml Regal Whiskey bottles, 4 x 1125ml regal Deluxe Whiskey bottles, 4 x 1125ml & 6 x 750ml regal London Dry Gin bottles, 1 gross BH 10 Cigarettes, 1 gross BH 20 Cigarettes, 1 gross Pall Mall Cigarettes, 1 gross Switch 20s Cigarettes, 1 gross Switch 10s cigarettes and $500.00 cash, the property of PRADEEP LAL with the intention to permanently deprive PRADEEP LAL of the said property.

2. You have admitted the following summary of facts;

The Accused

• MOSESE VUETAKI – 19 years of age, Chef of Block 3 Flat 5 Kia housing.
  

The Complainant

• PRADEEP LAL – 62 years of age, Businessman of Rifle Range.
  

On 9^th September 2018 at around 9.30pm the complainant locked up his liquor shop and left for his residence. The accused was at his home 11pm when one Mes and Maikeli came to see him and told him about a job at Fatty’s shop and they began to plan how to break into Fatty’s shop.

The accused then went with Mes and Maikali along Kia Road to Nailuva road then went up from Nailuva Road to Rakua Street then they followed the short cut to Mariko Park, from the roundabout at Mariko Street to Laucala Bay Road short cut near the Tonagan church they then walked to fatty’s shop along Laucala Bay Road.

The accused then waited near a TFL Drua for the area to be empty and Mes then used the bolt cuter which he had brought from the accused’s house to cut the padlock to the Liquor shop. Mes entered the shop first followed by the accused and Maikali, the accused helped Mes cut the grill inside the shop while Maikali kept checking to see if anyone was coming.

Mes went inside the counter area and started to pass the liquor and cigarettes to the accused who put them inside cartons. The cash register was also broken and money stolen by Mes before they all came out of the shop with 3 cartons.

The accused, Mes and Maikali then walked along Laucala Bay Road to the Tongan church then took a shortcut to Mariko and from there to Rakua to Maikali’s house. From Maikali’s house they took a shortcut to the water pump at Rewa Street and hid the stolen items there. The accused, Mes and Maikali then shared the money they stole and the accused received $60.00 and later they all drank some of the liquor they had stolen.

On 10^th September 2018 at around 6.30am the next morning upon returning to open his shop, the complainant noticed that the door of the shop was already open. Upon entering the shop he noticed that the grill had been cut and the following items stolen:

1. Bounty Rum – 3 x 100ml & 9 X 750ml;
2. Regal Whiskey bottles – 4 x 750ml;

100. Regal Deluxe Whiskey bottles – 4 x 1125ml;

4. Regal London Dry Gin bottles – 4 x 1125ml & 6 x 750ml;
5. BH 10 Cigarettes – 1 gross;
6. BH 20 Cigarettes – 1 gross;
7. Pall Mall Cigarettes – 1 gross;
8. Switch 20s Cigarettes – 1 gross;
9. Switch 10s Cigarettes – 1 gross;
10. Approximately $500.00 cash
    

The complainant reported the matter to police on the same day and provided police with CCTV footage from the shop, after police conducted further investigations which led to the arrest of the accused.

The accused was arrested and interviewed under caution by the DC Pranil at Raiwaqa police Station and admitted to the allegations. Police also showed the CCTV footage to the accused who identified himself as the second person who entered the shop, he then later accompanied police to the scene of the crim and showed police the route that he and Mes and Maikali followed 9as mentioned previously in facts above).

3. As I have explained in State v Prasad [2017] FJHC 761; HAC254.2016 (12 October 2017) and State v Naulu [2018] FJHC 548 (25 June 2018), based on the tariff endorsed by the Supreme Court for the offence of aggravated robbery in the case of Wise v State [2015] FJSC 7, the tariff for the offence of aggravated burglaich carries a maximum penalpenalty of 17 years imprisonment should be an imprisonment term within the range of 6 years to 14 years.
4. The offence of theft contrary to section 291 of the Crimes Act carries a maximum sentence of 10 years. In the case of Waqa v State [HAA 17 of 2015], this court held that the tariff for the offence of theft should be 4 months to 3 years imprisonment.
   
5. The offences you are convicted of are founded on the same facts. Therefore, in view of the provisions of section 17 of the Sentencing and Penalties Act, I consider it appropriate to impose an aggregate sentence of imprisonment against you for the two offences you have committed. Section 17 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”) reads thus;

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

6. You are 20 years old. It is submitted that you live with your parents and 4 other siblings. You are said to be attending Nabua Technical College, studying economics and accounting.
   
7. According to the summary of facts, you have committed the offences with two others. They came to your house around 11.00pm on the day the offence was committed and then the three of you planned to break into the shop. Therefore, there was pre-planning. There was some damage done in order to enter into the property. I would consider these as aggravating factors.
   
8. In your mitigation, apart from the fact that you have entered an early guilty plea, it is submitted that;
   1. You are a young first offender;
   2. You are remorseful; and
   100. You have cooperated with the police.
9. The interests of justice demand a deterrent punishment to be given in this type of cases. Undue leniency when it comes to punishing offenders who commit burglary or aggravated burglary in my view tend to contribute for burglary to remain as the most prevalent offence in Fiji and therefore erodes the public confidence in the rule of law.
   
10. However, in this case, you have shown an interest to pursue further studies. Your parents were present during the hearing on mitigation and sentencing and they have informed this court that they can look after you and you have committed this offence due to peer pressure. Your mother confirmed that you have now changed. Given these circumstances, I would regard rehabilitation as the main purpose of your sentence.
    
11. I would select 06 years as the starting point of your aggregate sentence. I would add 01 year in view of the aforementioned aggravating factors and I would deduct 03 years in view of the above mitigating factors. Now your sentence is an imprisonment term of 04 years.
    
12. In view of your early guilty plea, I would grant you a discount of one-third. Accordingly, the final sentence is an imprisonment term of 02 years and 08 months. I would fix your non-parole period at 18 months.
    
13. It is submitted that you have been arrested in view of this matter on 18/09/18 and you were granted bail in this case on 13/12/18. However, you were not released from the Remand Centre on 13/12/18 because you were in remand for another case. Accordingly, you have spent 02 months and 25 days in custody in view of this matter. The time you have spent in custody shall be regarded as a period of imprisonment already served by you in terms of section 24 of the Sentencing and Penalties Act. I hold that the period that should be considered as served by you should be 03 months.
    
14. In order to promote rehabilitation, I would suspend your remaining sentence in terms of section 26 of the Sentencing and Penalties Act for a period of 03 years.
    
15. In the result, you are sentenced to an imprisonment term of 02 years and 08 months with a non-parole period of 18 months. Given the time spent in custody, the time remaining to be served is 02 years and 05 months. This remaining term is suspended for 03 years.
    
16. The court clerk will explain you the effects of a suspended sentence.
    
17. Thirty (30) days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused