State v Iritu [2012] FJMC 350; Criminal Case 501.2012 (24 December 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 501/12

STATE

V

LIVAI IRITU
SEVECI BATIBASAGA
&
ANOTHER

Prosecution : Mr. Mohammed Yunus, Assistant Superintendant of Police.

Accused 1 & 3: In person.

SENTENCE

1. You, Livai Iritu and Seveci Batibasaga, are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 12.11.2012, for committing following offences,
   

I 'Aggravated Burglary' contrary to Section 313(a) as Count 1, and;

II 'Theft' contrary to section 291(1) as Count 2 of the Crimes Decree No 44 of 2009.

2. Initially the case was referred to the High Court as count one was an indictable offence. However it was later remitted to this Court with the extended jurisdiction of the High Court.
   
3. Both of you chose to waive your right to counsel. Then each one of you pleaded guilty on your own free will to both charges.
   
4. According to the Summary of Facts tendered by the Prosecution, which was read over and explained to you in your chosen language, you had broke entered the premises of BSP [Bank of South Pacific] Tamavua branch on 23.03.2012 with the intention of stealing.
   
5. You had stolen items worth of $ 12,700 from BSP. These items include 3 Flat Screen Televisions, two Microwaves and one Home Theatre system. The entry was gained through a broken window and the exit was made from a back door.
   
6. A report was lodged and later the first accused was arrested on suspicion. Thereafter the 3rd accused Seveci was arrested. Both of you admitted the alleged offence in the caution interviews and the items were later recovered by the police.
   
7. The aforesaid Summary of Facts was admitted by each of you on your own free will.
   
8. The Court convicts you for each offence as per the charge sheet.
   

COUNT -1

9. (i) The Maximum Sentence for Aggravated Burglary, according to Section 313(a) of the Crimes Decree, is 17 years of imprisonment.

(ii) Hon. Justice Madigan in the case of State v Mucunabitu [2010] FJHC 151, 15 April 2010 the tariff was held to be 18 months to three (03) years imprisonment for the offence.

10. Accordingly, I select 2 years imprisonment on each accused as the starting point for Count - 1.

COUNT - 2

11. (i) The offence of 'Theft' attracts a Maximum Sentence of 10 years' imprisonment according to Section 291(1) of the Crimes Decree 2009.

(iii) The Tariff for the offence is between two (02) to three (03) years imprisonment. Per Shameem J in Dravere Ledua v State [2002]HAA 014/02(apf MC 162/01) 23 April 2002; Per Gates J, in Maleli Tawake v State [2006]HAA049/06S 16 June 2006.

(iv) In the case of Tomasi Turuturuvesi v State [2002]HAA 86/02S, 23 December 2002 the tariff was held to be 18 months to three (03) years imprisonment.

12. Having considered the value of the items stolen, I select 2 years imprisonment on each accused as the starting point for count 2.

13. There are no aggravating features in the circumstances of the offending. Therefore each sentence will remain at 2 years.

MITIGATING FACTORS

14. In mitigation, both of you made similar submissions to the Court. Both are in the ages of 19 and 20; first offenders; looking forward on their respective careers; feel remorseful and promised not to re offend.

15. I observe that you have pleaded guilty at a very early stage in the case, hence you are entitled for the 1/3 reduction of your term of imprisonment on each count. Thus 7 months is deducted from each count.

16. Now your sentence stands at 1 year and 5 months for each count.

17. Another 5 months is deducted to reflect your personal circumstances. Therefore your final term for each count stands at 1 year.

18. The Court further notes that the two offences were committed during the course of same transaction. For this reason Court orders each sentence to run concurrently.

19. The Court has powers under the Sentencing and Penalties Decree 2009 to suspend any imprisonment term which is less than 2 years. Each of you submitted that you are first offenders. Further Court notes that all the stolen items have been recovered and therefore there is no such monetary loss occurred to the institute.

20. Each one of you held one month in the remand custody during the initial stages of this case. You are therefore entitled to a diminution of that period pursuant to section 24 of the Sentencing and Penalties Decree 2009. However I will consider this in favour of you, in the decision whether to suspend your sentence.

21. The Court has to consider the adverse long term impact which will be on a young first offender committed to serve a custodial sentence. Deterrence and rehabilitation will always not serve on a young first offender by prisons with large number of serious offenders.

22. On the other hand a suspended sentence is also considered as a term of imprisonment. The difference is that the offender serves the sentence while attending to his day to day work. The offender is bound for not to commit any other offence during the operational period. Any subsequent find of guilt will result him or her to serve the sentence which was suspended by the Court. It can also be considered as a period of rehabilitation to a first offender, where the Court and the law enforcement authorities will have constant monitor.

23. Having considered your young age and other circumstances this Court concludes that a suspended sentence is most appropriate in this instance.

24. Accordingly Livai Iritu your final sentence states as follows,

Count 1 - 1 year imprisonment,

Count 2 - 1 year imprisonment,

• Both sentence to run concurrently,
• Each sentence is suspended for 3 years.
  

Seveci Batibasaga your final sentence states,

Count 1 - 1 year imprisonment,

Count 2 - 1 year imprisonment,

• Both sentence to run concurrently,
• Each sentence is suspended for 3 years.
  

25. As stated early, any breach of the suspended sentence would be a ground for a separate prosecution against you.

26. Twenty eight [28] days to appeal.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

24th December 2012