State v Donu [2010] FJMC 74; Criminal Case 608 of 2007 (27 July 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No.s: 608/07, 37/08,
354/08, 474/09, 480/09

BETWEEN

THE STATE

AND

KAMINIELI DONU

SENTENCE

1. You, Kaminieli Donu are to be sentenced upon pleading guilty to the charges in case no.s 608/07, 37/08, 354/08, 474/09 and 480/09.
   
2. The charges you are convicted in those case are as follows;
   

Criminal Case No 608/07- i.) 1st Count -Breach of Bail condition contrary to Section 25 and 26 of the Bail act

Criminal Case No 37/08 - i.) 1st Count - Burglary contrary to section 299(a) of the Penal code

ii.) 2nd Count - Larceny in a dwelling house of property to a value amounting to not more than ten Dollars Contrary to section 270 of the Penal Code

iii.) 3rd Count - Criminal intimidation contrary to section 330(a) of the Penal Code

iv.) 4th Count - Wrongful confinement contrary to section 256 of the Penal Code

Criminal Case No 354/08- i.) 2nd Count - Conspiracy to commit felony contrary to Section 385 of the Penal Code

ii.) 3rd Count - Unlawful use of motor vehicle contrary to Section 292 of the Penal code

Criminal Case No 474/09- i.) 1st Count - Unlawful use of motor vehicle contrary to section 292 of the Penal Code

ii.) 2nd Count - Robbery with violence contrary to Section 293(1)(b) of the Penal code

Criminal Case No 480/09- i.) 1st Count - Burglary contrary to Section 299(a) of the Penal code

2. 2nd Count - Larceny in a dwelling house of property to a value amounting to not less than ten Dollars contrary to section 270 of the Penal code
   

3. The section 4(1) of the sentencing and penalties Decree sets out the following purposes for which sentencing may be imposed by a court;
   
   1. To punish offenders to an extent and in manner which is just in all the circumstances
      
   2. To protect the community from offenders
      
   100. To deter offenders or other persons from committing offences of the same or similar nature
        
   4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated
      
   5. To signify that the court and the community denounce the commission of such offences
      
   6. Any combination of these purposes
      
4. Further Section 4(2) stipulates the matters which the court must have regard to when sentencing an offender. Accordingly the following factors have to be taken into consideration;
   

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

5. Based on the above guidelines I will now consider imposing sentences on you in each case in the following manner.
   

Criminal Case No 608/07

6. The maximum punishment for breach of bail is fine of $2000 and 12 months imprisonment. In this case I pick my starting point as 3 months imprisonment.
   
7. In case no 608/07 you were charged for not appearing in the magistrate's Court after you were released on bail. You have been already sentenced in the original case where you breached bail conditions. Further this offence is committed nearly three years ago. Therefore I decide not to enhance the sentence for any aggravating factors in this case.
   

Criminal Case No 37/08

8. The maximum punishment for burglary is life imprisonment. In this case I pick my starting point as 2 years imprisonment. The maximum punishment for Larceny is 14 years imprisonment. I pick my starting point as 18 months. The maximum sentence for criminal intimidation is 10 years. I pick my starting point as 6 months. For wrongful confinement the maximum punishment is one year or to a fine of four hundred dollars years. I pick 3 months as my starting point.
   
9. In case no 37/08 you with others have stolen items from the complainants house all to the total value of 55, 047 Dollars. You have tied the hands and legs of the security officer at the complainant's house and stolen the items. Only 1455 dollars worth of items have been recovered. You committed this offence with a gang of men and in a very organized manner. You have intimidated the security guard by tying his hands and legs and have unlawfully confined him. A substantial amount of property is stolen and only a small amount is recovered. You have invaded the house of the complainant and thereby causing a terror in the minds of the residents although they were away at the time of the offence. You have committed these offences while you were on bail. For the aggravating factors in this case I enhance the sentence for 1st, 2nd,3rd and 4th counts by 9 months.
   

Criminal Case No 354/08

10. The maximum sentence for Conspiracy to commit felony is 7 years. I pick my starting point as 12 months. Maximum sentence for unlawful use of motor vehicle is six months imprisonment and or $100 fine. I pick my starting point as 3 months.
    
11. In case no 354/08 you and others have conspired to commit robbery of a vehicle carrying wages of the workers of Danam Fiji Limited on the 01st may 2008. You with others have used a stolen van to commit this offence. However before you rob the vehicle carrying cash, the strike Back team of the Police has arrested you and the others. It appears that no money was stolen as you failed to carry out the robbery as planned. You and others have only used the stolen vehicle unlawfully. You have committed this offence while on bail. Gang of men has conspired to commit this offence. For the aggravating circumstances I enhance the sentence by 3 months for the second and third counts.
    

Criminal Case No 474/09

12. The maximum sentence for unlawful use of motor vehicle is six months imprisonment and or $100 fine. I pick my starting point as 3 months. The maximum sentence for robbery with violence is imprisonment for life. The tariff for robbery with violence now is 7 to 10 years. In this case I pick my starting point as 7 years.
    
13. In case no 474/09 you and others have unlawfully taken a car belonged to another on the 05th October 2009. Then you have gone to the MH supermarket in that vehicle around 9 .30 am. You with another put on balaclavas and entered the supermarket armed with cane knives and iron rods. You entered the FEA paying booth and threatened the staff with violence before stealing cash. You with another fled the scene in the same vehicle with 41, 613.70 dollars. Only 1243.65 dollars was recovered when you were arrested. This appears to be a well planned broad day light crime. You have committed this offence with a gang of men. You have used cane knifes and iron rods although no injury was inflicted. You have terrorized the staff in the counter before stealing money. A substantial amount of money has been stolen but only a little portion is recovered. You have committed this offence while you were on bail in about 7 cases with similar offences. For the aggravating circumstances in this case I enhance the sentence of the 1st count by 3 months and the sentence of the 2nd count by 2 years.
    

Criminal Case No 480/09

14. The maximum sentence for burglary is life imprisonment. In this case I pick my starting point as 2 years imprisonment. The maximum punishment for larceny in a dwelling house is 14 years. I pick my starting point as 18 months.
    
15. In case no 480/09 you were arrested while being in possession of a stolen mobile phone belonged to the complainant. The complainant's house has been broken in to on the 19th April 2008 and items worth of 2,580.60 dollars were stolen including a mobile phone with the number 9310768. It was later discovered that you have used the same number to call your wife's friend and another girl on the same date the complainant's house was broken into. No other items were recovered. You have committed this offence while you were on bail for two similar cases. For the aggravating circumstances I enhance the sentence by 3 months in 1st and 2nd counts.
    

Mitigation

16. Initially you did not say anything for mitigation. You pleaded guilty in few other matters as well along with these cases. However after passing sentences in few cases you sought permission of the court to mitigate in these cases. Accordingly you were allowed to mitigate and your wife was also called to mitigate on your behalf.
    
17. In mitigation you said that you seek forgiveness for all your cases. You said you are married and have one child. You said your wife is pregnant. You said you have a family to look after. You requested all the sentences to be ordered to run concurrently. You said then you can come back and look after your family. You said you are a first offender and requested the time you spent in the remand to be deducted from the sentence.
    
18. Your wife said that you have a son and another child is due in two weeks. She said that she knows the seriousness of the crimes you committed. She said that you need to be rehabilitated. She asked for a less custodial sentence for you to be a father to your children and a husband.
    
19. I have considered your personal circumstances in sentencing you in all these cases. Also the court is mindful that you are still at your young age and the court has a duty to give you a chance to correct yourself. You are indeed a first offender. But I prefer to distinguish a simple first offender who has committed an offence for the first time in his life and a person who is convicted for a series of cases though he has not been sentenced previously. I see a clear contrast between your pattern of committing crimes and a simple first offender. Although you do not have previous conviction I doubt whether you could be strictly called as a first offender or you could be given the same discount, a first offender would have been entitled to, in different circumstances. Justice Nawana stated in State v. Vilikesa Tilalevu and Savenaca Mataki HAC 081 OF 2010;
    

"I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule. "

20. Yet I have considered the fact that you do not have previous convictions in sentencing in these cases. You were in remand prison from 13th October 2009 to 08thJune 2010. The time you spent in the remand was also taken into consideration when imposing the sentences in these cases.
    
21. For the mitigatory factors I reduce the sentences in these cases in the following manner;
    

Case No 608/07 –	by one month
Case No 37/08 -	1st count – by 12 months 2nd count – by 9 months 3rd count – by 6 months 4th count – by 6 months
Case No 354/08 -	2nd count – by 6 months 3rd count – by 3 months
Case No 474/09 -	1st count – by 3 months 2nd count – by 12 months
Case No 480/09 -	1st count – by 9 months 2nd count – by 9 months

22. You have committed a number of serious offences repeatedly. Most of these offences were committed by you while you were on bail in other cases. In one case you have even used cane knives and iron rods. However you have not inflicted any injury on any person. But the terror you unleashed in committing these offences have to be taken in to consideration in sentencing. Justice Gounder emphasized the significance of recognizing the impact on the victims in State vs Mataiasi Bulivou Susu [2010] FJHC 226 and stated that;
    

"Fortunately, the victims were not physically injured. But being gagged and driven while in the boot of a vehicle must be a horrific experience for the victim. Also, being threatened with violence by a gang to hand over the property must be daunting to the victim. These experiences cannot be forgotten easily and the emotional impact that such experiences leave behind on the victim cannot be ignored by the court."

23. Thus it is very clear that this court has to necessarily consider the impact on the victims of the offences you committed. Apart from loosing their hard earned properties, the insecure and helpless positions they were exposed to and the trauma they are subject to as a result of the violent acts you committed cannot be disregarded in imposing appropriate sentences.
    
24. The court has to signify that the society and the court denounce offences of this nature. Especially the court has a duty to protect the community from offenders who repeatedly commit offences of this nature. These types of offences are very prevalent in the society and if the sentences which are imposed by the courts are not proportionate to the crimes committed, the court would fail in achieving the real objectives of the sentencing and Penalties Decree.
    
25. However having considered all the facts stated above I decide to impose sentences in these cases in the following manner which I believe "is just in all the circumstances'.
    

Case No 608/07 –	2 months imprisonment and 200 dollars fine. In default 20 days imprisonment
Case No 37/08 -	1st count – 9 months imprisonment 2nd count- 18 months imprisonment 3rd count- 9 months imprisonment 4th count – 6 months imprisonment
Case No 354/08 -	2nd count – 9 months imprisonment 3rd count- 3 months imprisonment
Case No 474/09 -	1st count – 3 months imprisonment 2nd count – 8 years imprisonment
Case No 480/09 -	1st count – 18 months imprisonment 2nd count – 12 months imprisonment

26. Further I order that all the sentences should run concurrent to each other. You are eligible for parole after 84 months.
    
27. You were already sentenced to 9 years and 6 months in case number 903/08. Having considered all the circumstances in these cases I order that these sentences should run concurrent to the sentence now you are serving in case no 903/08.

28 days to appeal.

Rangajeeva Wimalasena
Resident magistrate

Lautoka
27.07.2010