State v Vuniwai [2009] FJMC 35; Criminal Case 1770.2008 (22 December 2009)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: 1770 of 2008

STATE

V

NEUMI VUNIWAI

For Prosecution: Sgt. Vinesh
Accused: Present in Person

SENTENCE

1. You, NEUMI VUNIWAI, are here, to be sentenced on admission of guilt on your own accord for the offence of Larceny Contrary to Section 259 (1) and 262 (2) of the Penal Code.

2. According to the facts (which you have admitted), on 09th October 2008 you have stolen a Motorola Mobile Phone belongs to Elenoa Kunaika which was put in the charger at Micro Finance Office. PW – 2 had seen you in the office in an area which is prohibited to public and after PW-1 found that her phone is missing suspected you and had run after you. When PW-2 caught you, he had found the mobile phone in your possession.

3. According to the case record you were brought before the court on 13th October 2008 and pleaded not guilty for the charge. After bail being granted you were absconding court for one year. When you were brought before my brother magistrate, you have found lying about your reason for the absence.

4. Maximum sentence for the offence under Sec. 262 (2) is ten years for an offender with a previous conviction. Tariff for simple Larceny is 6 months to 12 months imprisonment. Re: Kaloumaira v State [2008] FJHC 63, Manasa Lesuma v The State [2004] FJHC 490, Iowane Wainiqolo v The State [1999] FJHC 15, and Naiteqe Vulici v The State [1996] FJHC 18.

5. You are a repeat offender. According to the previous convictions list, you have 19 previous convictions ranging from 1979 to 2008. Out of all, 8 previous convictions are less than 10 years old and 4 of those are for Larceny. You have admitted the list. When referring to the list it is very obvious that you have a habit of disregarding the binding orders of the court and you tend to reoffend during that period. [E.g.:- On 12th December 1979 you have bound over for 12 months but your next offence was on 24th January 1980. Again on 19th July 2004 you were bound over for 12 months and the next offence was on 15th November 2004. Finally you have been bound over by Nasinu court for 12 months on 13th May 2008. Without having any regard to the court you committed this offence on 09th October 2008.]

6. In Viliame Cavuilagi v. State, Crim. App. HAA 0031 of 2004 Winter J has made following comments regarding a repeat offender.

"Repetitive, recidivist of 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 sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law-abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime".

7. You are not a first offender, so you are not entitled for any discount for your previous good behaviour. I set my starting point of sentencing for 12 months.

8. You have committed this offence whilst there was a binding order in operation. You were absconding from the court and found lying to the magistrate. In 2006 you have served six months imprisonment term which has no impact on your criminality. You are unable to rehabilitate and to me it seems that you have taken the leniency shown on you by the judicial system to a mockery.

9. You have stolen the mobile phone which was in an area at Micro Finance office, which is prohibited for general public. Entering into such a place without permission itself shows that you have no regard for rules and regulations.

10. Considering your persistent disobedience to rule of law as an aggravating circumstance I add another 6 months to the sentence, which now stands for 18 months imprisonment.

11. You have pleaded guilty, which is not an early plea and you have wasted valuable time of court for more than one year by absconding. Therefore, I am of the view that you are not entitled to 1/3 reduction for your guilty plea. In mitigation you said that you are going back to the village and you have to look after your farm. You further said that you as a carpenter, building your brother’s house. You said that you are sorry.

12. For your late guilty plea and the other mitigating factors, I reduce 4 months from the total sentence of imprisonment.

13. Your sentence now stands for 14 months imprisonment. This is two months outside the tariff. However, following findings would justify the sentence.

- You are 43 years old. (According to the summary of Facts, which you have admitted). Your first two offences, which were for House breaking, entering and larceny and Larceny in Dwelling house were committed in 1979 and then you were 13 years old. You have started young.

- Since then you have not made a single attempt to rehabilitate.

- You have shown no respect or obedience to the rule of law and orders of the court.

- Out of your 19 previous convictions, 11 convictions are for Larceny. Your propensity to commit similar offences shows that you are a risk to the Fiji Community. It seems to me that you have made this particular criminal offence your past time hobby.

- Fiji is a beautiful country. But people are compelled to live behind burglar bars and other security measures because of the criminals like you. In fact innocent people have become prisoners in their own homes whilst criminals like you freely move around committing crimes at their will.

14. Even though the sentence I have imposed upon you stands for 14 months imprisonment, in the circumstances of your case, I am of the view that a suspended sentence would not serve the purpose.

15. You are hereby sentenced to 14 months imprisonment. Starting date of the sentence is set as 09th November 2009, as you are in prison from that particular date.

16. Since you have committed this offence within the period you have been bound over by the Nasinu court to maintain good behaviour and not to re-offend, you are hereby requested to give reasons as to why I should not forfeit the bond and act according to the law.

17. 28 days to Appeal.

On this Tuesday the 22nd day of December 2009

Kaweendra Nanayakkara
Resident Magistrate