State v Kuruiqovu [2010] FJMC 176; CRC 1181.2010 (29 December 2010)

IN THE MAGISTRATE'S COURT OF FIJI ISLANDS AT NADI

CRIMINAL CASE NO: 1181/10, 1182/10, 1183/10 & 1184/10

STATE

V

RUSIATE KURUIQOVU

Mr.Newal for prosecution
Accused in person

Date of Sentence: December 29, 2010.

SENTENCE

[1] RUSIATE KURUIQOVU this is your sentence.

[2] You were charged with one count of BURGLARY Contrary to Section 312 (1) and one count of THEFT Contrary to Section 291 (1) of the Crimes Decree No.44 of 2009.

[3] You pleaded guilty to the charges when the charges were read and explained to you and after you confirmed that you understood the charge.

[4] A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution handed up a copy of it to court.

[5] I have reviewed the facts against the particulars of the offences charged in this case, and I am satisfied that it supports the elements of the charges in the information laid against you by the prosecution.

[6] Therefore I convict you on both counts as charged.

Facts for Sentencing:
[7] File No. 1181/10: on the 22nd day of November 2010 at Nadi in the western Division entered the house of the complainant with intent to steal, and stole items to the total value of $142.00.

File No. 1182/10: on the 1st day of October 2010 at about 1930hrs you forcefully kicked the main office door of and entered the office and stole items all to the total value of $56.00.

File No. 1183/10: on the 1st day of October 2010 at about 0010hrs you came to the complainant's house with your friend and opened the shatters of the kitchen window and stole fish which was inside the pot on top of the stove.

File No.1184/10: on the 4th day of October 2010 at about 1200hrs, you entered the victim's house by forcefully removing the louver blades of the window and stole items all to the total value of $7,037.00.

Aggravating Factors:
[8] i. You invaded dwelling house of the victims;

ii. The victims lost property worth of $7,200.00;

iii. You violated the privacy of the victims' families by home invasions;

iv. Total lack of respect towards the victims' property and personal enjoyment of property rights;

v. You have 10 previous convictions. Most of them are similar offences.

Mitigating Factors:
[09] i. You are 29 years old married with 4 children;

ii. You wish to apologize to court and sought forgiveness;

iii. You told that you have learnt from your mistake and this is your last offence;

The Sentence: (Count No.1):

[10] The offence 'Burglary' carries a penalty of 13 years imprisonment according to section 312 of the Crimes Decree No.44 of 2009.

[11] From a 5 year starting point, 5 1/2 years for critical role in ensuring the joint criminal enterprise of Burglary (s. 299 (a) & (b) and robbery with violence (s.293 (1) ) was successful, for a cowardly home invasion violating the privacy of a family, total lack of respect towards victims property and personal enjoyment of their rights in their own home; Yasa's co-accused stern punishment of 10 years to indicate public disapproval of conduct which strikes at a very heart of safety and security of the public: per Goundar, J in State v Sailosi Ralago Volivale [2009] HAC 30 (A) /05S 18 June 2009.

[12] Accordingly, in this case for count No.1, I select 03 years imprisonment as a starting point.

[13] I observe that an accused who pleads guilty in the first available instance is entitled for a 1/3 reduction of the term of imprisonment, (Akili Vilimone v State, Cr. App. HAA 131/2007). Hence I give one year discount from your sentence. This takes your sentence to 2 years.

[14] In view of the above aggravating factors, I increase your sentence by another 06 month, and the period of imprisonment is now 2years 6 months.

[15] Your mitigating factors are not convincing hence you are not entitled to any credit for that. you have 07 previous convictions between 2001 –2010. Most of those convictions are for the similar offences. You last previous conviction is on 10.09.2010

For count No.2:
[16] The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.

I. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)

II. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

III. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.

[17] Accordingly, in this case for count No.2, I select 2 years imprisonment as a starting point.

[18] For your guilty plea I give you a reduction of 8 months. This brings your sentence to 16 months.

[19] In view of the above aggravating factors, I increase your sentence by another 6 months, and the period of imprisonment is now 22 months.

[2] In aggregate your term of imprisonment is 52 months.

[20] Considering the totality principle the sentences in Count 1 & 2 to run concurrently hence you must serve a term of 30 month imprisonment.

[21] Your sentences in other cases are as follows:

1. File No. 1182/10: 30 months;
   
2. File No. 1183/10: 30 months; and
   
3. File No. 1184/10: 30 months and these sentences to be run concurrent to the sentence in File No. 1181/10
   

[22] I am mindful of the fact that in terms of section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case I fix 2 years non-parole period.

[23] the duty cast upon this court is not only be fair by as an accused as urged by you, but also to serve justice to the society at large as expressed by Winter J, in the case of Viliame Cavuilagi v State [Crim. App. HAA 0031 of 2004].

[24] Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate court to sentence otherwise. In your case I could not find any special circumstances that motivate me to sentence otherwise.

[25] The sentence might act as a deterrent to the offender and others who fall into pattern of semi-professional crime to support themselves.

[26] 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 wreak havoc on the lives of law-abiding citizens.

[27] Offenders like you deserve punishment that fits the circumstances of the crime.

[28] Twenty eight (28) to appeal.

Order:

[39] Accused is hereby sentenced to 30 months imprisonment with a non-parole period of 1 year.

M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this 29th day of December 2010.