State v Raqauqau [2011] FJMC 60; Criminal Case 1034.2010 (21 April 2011)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 1034 of 2010

STATE

V

SAVENACA RAQAUQAU

Sgt Volavola for the Prosecution
The accused unrepresented and appeared in person

SENTENCE

[1] You, Savenaca Raqauqau, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

Burglary: Contrary to section 312(1) of the Crimes Decree No. 44 of 2009

Theft: Contrary to the section 291(1) of the Crimes Decree No.44 of 2009

Burglary is an indictable offence triable summarily and you elected Magistrate court. Initially, you pleaded not guilty to the charge and matter was set for hearing. On that day, on 08th April 2011 the prosecution was ready for hearing with their witnesses then you changed your former plea of not guilty and pleaded guilty to the charge. I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I am further satisfied that all the ingredients as to the charges could be or have been proved beyond reasonable doubt against you, if trial proceeded. I convict you as charged.

[2] According to the facts, (which you have admitted), on 28-09-2010, you entered into the Victim- Ashwin Kumar Lal's house through kitchen window. You entered as a trespasser and with intent to steal. Then you and you stole Acer Laptop valued at $ 2500, Alkaberry Mobile Phone valued at $166 and $30 cash to the total value of $ 2696 the property of Ashwin Kumar Lal .

[3] Under the Crimes Decree No 44 0f 2009,

Maximum penalty could be imposed for Burglary is 13 years.

Maximum penalty could be imposed for Theft is 10 years.

[4] In Tomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender. In William Prasad V State [2010] AAM 1/10 Ruling 12 February 2010 Byrne AP held that the tariff for simple larceny on first conviction is 2-9 months; on a second conviction, sentence in excess of 9 months and in cases of a large amount of money, 1 ½ years to 3 years. It was further held that "No error here in 1 year sentence for stealing van's stereo and amplifier worth $ 1799, later recovered from a pawn shop".

Aggravating Factors of the offence

[5] Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

-felonious intention

-house breaking entering

-committing theft

[6] You have 56 previous convictions. 35 of them are similar nature of these offences. I note, last conviction is on 16th 08 2011.That is drunken and disorderly. Your last previous conviction of larceny was on 09-04-2010. You were given 12 months imprisonment and it was suspended for 18 months.

[7] Considering value of property, I select 6 year imprisonment as starting point in respect of first offence-Burglary. In respect of Theft, second count, I select 3 years imprisonment as the starting point.

Mitigating Factors

[8] In mitigation, you said that you are 32 years old, married with a one child, sole bread winner of the family. You are also supporting your elderly parents. You asked court's forgiveness and promised not to re offend. You said that you pleaded guilty and save court's resources and time. You said that you have been in remand for 7 months. You ask non custodial sentence and long term suspended sentence. You said your son is class 1 student and you should support him.

[9] You pleaded guilty for the charge at initial stages. Therefore, you entitled for reduction of your sentence. I am giving the benefit of ⅓ as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007. Now your sentence is 4 years in respect of first offence and 2 years for second offence.

[10] It should be noted that you have 56 previous convictions. 35 previous convictions are similar nature of this offence. This court can not punish those offences since punishments have already been dealt with and served. But it appears to this court that you have tendency to do these type of offence again. Unfortunately I cannot name you as "Habitual offender" under the Sentencing and Penalty Decree 2009. Section 11 of the Sentencing and Penalty decree 2009 Says

"(1) A judge may determine that an offender is a habitual offender for the purposes of this Part—

(a) when sentencing the offender for an offence or offences of the nature described in section 10;

(b) having regard to the offender's previous convictions for offences of a like nature committed inside or outside Fiji; and

(c) if the court is satisfied that the offender constitutes a threat to the community.

(2) The powers under this Part may be exercised by the Court of Appeal and the Supreme Court when hearing an appeal against sentence."

This power is vested to a Judge and it shows the High Court of Fiji, Court of Appeal and Supreme Court are given name the Habitual Offenders.

[11] Out of 56 previous you were given 42 custodial sentences. I only consider past 10 years convictions. During past ten years you have been convicted for 19 cases. Yet again, you have committed this offence after 1 ½ month duration of the last offence. It shows that you have never learnt from your past and you are incorrigible. It seems to me, though ample chances have been given to you but you have failed to rehabilitate yourself. I regret your family ties, but if you really love them you should feed them in a lawful ways and means; which you have not adopted.

[12] Hence, this court does not see any meritorious mitigation in your part. You said that you will not re offend. You must have said and sought leniency in previous all times this manner. But you were unable to not to re offend. Then, how does this court believe it? As I mention in paragraph 3, the legislators' intention is very clear and offenders must be severely punished with for these kinds of offences for the sake of society. Otherwise court will be failing its duties towards to the society.

[13] In balancing the sentencing principles, the court is normally gracious to young, first offenders and accuseds those who have saved court's resources and time. In addition court looks at victim's side and society wise.

[14] For the above mention reasons and aggravating factors I increase two years for the count one and one year for the count two. Considering your mitigation, as I mention earlier, for you early plea I have given 1/3 reduction and other mitigation has no value in this case, but I have started in lower tariff rate considering those mitigating factors. Your actual sentence now is 6 years imprisonment for count one and three years for count two.

[15] You asked long term suspended sentence. Therefore should I suspend this sentence? In Regina v Sione [2001] SBHC 16; HC-CRC 139 of 2000 Consolidated with 138 of 2000, 164 of 2000 & 035 of 2001 (28 March 2001) Justice Kabui went on saying
"I feel that a suspended sentence was not called for in this case. The Court placed no weight on the fact that the prisoner had re - offended and obviously had not learnt from the fact that he had just come out from prison as a result of committing the same offence in 1999. The Court however did say it had a duty to help and keep the prisoner out of trouble. This is clearly a subjective view rather than being a recognised sentencing practice. It was obvious that the Court was heavily influenced by the prisoner's guilty plea and the fact that the stolen property had been recovered. To impose a suspended sentence is an act of double leniency on the part of the Court. I would revoke the 6 months suspended sentence and reinstate 6 months imprisonment with immediate effect. I Order accordingly."

[16] Thus, re offenders does not get the benefit of suspending the sentence. Court does not want to give double leniency in this matter as court started with lower tariff rate. Therefore, this court does not tend to suspend your sentence in this case.

[17] Should these sentences run concurrently or consecutively? Section 17 of the above sentencing Decree says

"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."

[18] I now draw my attention to the section 13 of the said Sentencing Decree 2009.

"Every term of imprisonment imposed by a court on a person determined to be a habitual offender under section 11 for an offence of a nature stated in section 10 shall, unless otherwise ordered by the court, be served consecutively on any uncompleted sentences or any other sentence imposed on the offender."

[19] Considering the above principles in respect of each Count, it is important that the Totality Principle be given due consideration. This principle was considered by the High Court in the case of Tukoli Visawaqa v The State [2003] FJHC 138; HAA00021j.2003B (23 September 2003) where the Court held:-

"The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the "one transaction rule" and the "totality principle" (Thomas: Principles of Sentencing 2nd Ed. p.53). It does not mean that consecutive sentences cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of aggravating features (Regina v. Johnson (Thomas). The Times 22.5.95).

The totality principle has been expressed by Thomas in his Principles of Sentencing 2nd Ed at p.56 as follows:-

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentence, to review the aggregate sentence and consider whether the aggregate is just and appropriate".

[20] In Krishna & Others v Reginam 8FLR 236 at 238 MacDuff CJ Observed

"Turning next to concurrent sentences, the practice is, where a person commits more than one offence at the same time and in the same trans action, save in very exceptional circumstances, to impose concurrent sentences....This practice had been extended to cases where although the offences have not been committed at the same time, they have been of the same type and have, in effect, formed part of one transaction"

[21] In Lawrence (1989) 11 Cr.App.R (S) 580 Lord Lane CJ said as follows

"This case has given us the opportunity to consider this matter afresh, namely the matter whether concurrent sentences have to be passed as a matter of practice when the offences arise out of the same incident.

It seems to this court the problem is really one of determining what sentence is appropriate to the offences taken as a whole, that is to say the whole of the criminal activity of the defendant on that particular occasion

Whether that is done by imposing shorter sentences to run consecutively or longer sentences to run concurrently, does not really in the end make any difference. In some cases long, or even the maximum sentence for each offence to run consecutively will plainly be justified."

[22] As I observed in paragraph 18 in this literature, habitual offenders are not entitled get concurrent sentences. Though this court cannot name you as a Habitual Offender, but this court has discretion to give consecutive sentences.

[24] I rely on the notion as per Winter j in Viliame Cavuilagi –v- State [2004] HAA031/04 Judgment of 14 April, 2004;

"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 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. Thirdly offenders deserve punishment that fits the circumstances of the crime." (Emphasis and underlining is mine)

[23] I believe that the primary aim of every sentence is prevention of future crime. Where the offender is so hardened that rehabilitation is plainly impossible, the sentence may be designed to segregate the offender from society so that he will be unable to do any future harm. I hope this proposition should be adopted for every incorrigible who cannot reform and rehabilitate.

[24] You have given ample chance to rehabilitate yourself but you failed to do so. Therefore you are attracted to long term sentences. Applying those principles, I order your sentences should run consecutively. Police are ordered to prosecute you for the suspended sentence that was given in C.F. 191/10 to activate under the section 28 of the Sentencing and Penalty Decree 2009

[25] Therefore you are hereby sentenced to

Count 1: 6 years imprisonment

Count 2: 3 years imprisonment

[16] 28 days to appeal. Copy of this sentence has been furnished to the accused in open court.

On 21th April 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate