State v Yaya [2012] FJMC 360; Criminal Case 1005.2012 (22 October 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Jurisdiction

Criminal Case No. 1005/2012

THE STATE

–v-

ALIFERETI COKANASIGA YAYA

For the State : WPC Fisher
For the Accused: Present In Person

SENTENCE

1. ALIFERETI COKANASIGA YAYA, you have pleaded Guilty to one count of Going Equipped for Property Offences contrary to Section 315 (1) (2) (b) of the Crime Decree No. 44 of 2009 and one count of Breach of Suspended Sentence contrary to Section 28 (1) of the Sentencing and Penalties Decree, 2009 and the particulars of the offence is as follows;
   

Count One

ALIFERETI COKANASIGA YAYA with others on the 19th day of July, 2012 at Navua, in the Central Division, whilst not at home they had with them 1 bolt cutter, 1 black scarf, 1 plastic bag, 1 potato sack, 1 cloth bag, 1 pompom, 1 baseball cap and 1 balaclava, with intent to use them in the course of a property offence, namely aggravated robbery.

Count Two

ALIFERETI COKANASIGA YAYA, on the 4th day of January, 2011 at Suva in the Central Division being sentenced by the Suva Magistrate Court for the offence of Robbery with Violence, CF 1202/10, breached the order during the operational period of the suspended sentence and committed the offence of going equipped for property offence on the 19th day of July, 2012.

2. You were convicted of the charge on your own plea of guilty. I am satisfied that you are fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you is as follows; that;
   

Count One

“On the 19th day of July, 2012 at about 9.00pm Cpl 3290 Vueti Biumaimuri [PW-1] 37 years Police Officer of RAU with Operation Team doing snap road block along the Queens Highway at the Navua junction. Whilst stopping vehicle on the road they came across vehicle registration number FT 635 driven by Alifereti Cokanasiga [Accused 04] 47 years self employed of Lot 27 Soronacagi Road, Tacirua East. There were other 3 passengers in the vehicle. Upon searched made in the vehicle found 1 x 30 inch bolt cutter in a potato sack, a balaclava, a plastic bag and sewn bag of clothing, a black scarf, a cap and pompom. The [Accused 04] was arrested and escorted to Navua Police Station in which he was interviewed under caution and charged for the offence of Going Equipped for property Offence.

Count Two

The accused was sentenced on 04/01/2011 on Case no:1202/10 for two years imprisonment period suspended for 03 years.

4. Mitigating Factors and Personal Background:

I consider oral and written mitigation submitted by you including your personal back ground on your behalf which state inter alia as follows; That you are;

47 years of age, single and self employed, pleaded guilty on the first available opportunity not to waste the courts valuable time, pleaded guilty to the charge of going equipped for property or theft offence mainly because the equipment found in the car belong to you, further you submitted that the car that you were driving was not a stolen vehicle and you were stopped by the police whilst driving normally on a public highway.

5. Maximum Penalty
   

Count 1

I reproduce penal section for the offence of “Going equipped for theft or a property offence” it reads as follows and carries maximum penalty of Imprisonment for 3 years.

Section 315.(1) A person is commits a summary offence if he or she, when not at home, has with him or her any article with intent to use it in the course of, or in connection with, theft or a property offence.

(2) In this section—

“property offence” means:

(a) ....

(b) aggravated robbery;

Tariff

The Courts in Fiji yet to set a tariff for the offence of “Going equipped for theft or a property offence”. The equivalent offence under the Penal Code was “Being found in possession of housebreaking implements contrary to section 303 (b) of the Penal Code, which carries maximum sentence was 5 years imprisonment and that the tariff was around 12 months imprisonment. see SUKULU TIKOITOGAv. THE STATE Criminal Appeal No: HAA .In this case her ladyship Justice Nazhat Shameem reffered to Josua Kania v. The State and Peniasi Tirikula v. The State as follows;

“Singh J in Josua Kania v. The State Crim. App. HAA063 of 2002, considered an appeal against an 18 month sentence imposed on the appellant for the same offence under section 303(b) of the Penal Code. In that case the appellant had been found in possession of a pinch bar, a pair of hand gloves and a kitchen knife, at midnight. He reduced the sentence to 12 months but only because the magistrate had wrongly taken the compulsory one-third remission into account when sentencing.

In Peniasi Tirikula v. The State [2005] HAA0134J.2005S, the appellant was sentenced for a number of offences including one of being found in possession of housebreaking implements at night. He had been found in possession of a pinch bar, pliers and a screwdriver. He was sentenced to 12 months imprisonment and the sentence was upheld by High Court.”

On the same token I note that the maximum penalty for Being found in possession of housebreaking implements.is.05 years imprisonment period while Going Equipped for Property Offences contrary to Section 315 (1) (2) (b) of the Crime Decree carries maximum penalty of 03 years imprisonment period.

Count 02

I reproduce penal section for the offence of Breach of Suspended Sentence contrary to Section 28 (1) of the Sentencing and Penalties Decree, 2009.

Section 28 reads;

(1) If at any time during the operational period of a suspended sentence of imprisonment, the offender commits another offence punishable by imprisonment, the offender is guilty of an offence against this section.

(2) A proceeding for an offence under sub-section (1) may be commenced at any time up to 3 years after the date on which the offence is alleged to have been committed.

Further sec.28 (4) reads, if on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a fine not exceeding 100 penalty units and in addition the court must restore the sentence or part sentence held in suspense and order the offender to serve it, but of the court considers that exceptional circumstances exist that make this unjust, the court may instead—

(a) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or

(b) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this sub-section; or

(c) make no order with respect to the suspended sentence.

(5) Any order for an offender to serve a term of imprisonment under sub-section (4) must be served—

(a) immediately; and

(b) unless the court orders otherwise, consecutively on any other term of imprisonment previously imposed on the offender by that court or any other court.

6. Sentence
   

in the light of sentencing guidelines under section 4 (1) and (2) and general sentencing provisions under section 15(3) ) of the sentencing and penalties decree i consider an appropriate sentences on you.

Having considered your Guilty Plea and the Aggravating and Mitigating Factors in this case, I note that you have 47 previous convictions and in Sentencing you, I disregard your Previous Convictions which are over 10 years. Now, you have live 25 previous convictions. Further, I do not see that you are remorseful of your actions. Furthermore, in sentencing you I note that there are no special aggravating factors as your actions constitute the elements of the offence.

In view of above mentioned legal precedents on Tariff for this offence, I select 09 months as a starting point for the first count. In considering your early guilty plea at the first available opportunity I reduce 03 months. For the mitigating factors I reduce 03 months to reach the period of 03 months. You have string of previous convictions; therefore you are not entitling for further deductions for your previous good character.

Now you sentence stands for 03 months imprisonment period.

I note that you was remanded in custody from 23rd July 2012 to 05th September 2012, in total you was remanded for 44 days in custody for this particular matter, In this scenario, I draw my attention to Prasad v State {2010] FJHC 12; AAU 0111.2007(8th April 2010) at paragraph 6 stated:

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence. Although it is not necessary to make a precise calculation (Basa v the State [2006] FJHC 23:AAU0024.2005 (24th March, 2006)".

In all the circumstances I find it appropriate to consider the time you spent in custody. In light of above judgement and in pursuant to section 24 of the sentencing and penalty Decree I deduct 44 days from your imprisonment period. Now your sentence stands for 47 days. Accordingly, I sentence you 47 days imprisonment period for the offences of Going Equipped for Property Offences contrary to Section 315 (1) (2) (b) of the Crime Decree No. 44 of 2009.

You being sentenced by the Suva Magistrate Court for the offence of Robbery with Violence vide CF 1202/10 for 02 years imprisonment period suspended for 03 years. And you have breached the order during the operational period of the suspended sentence and committed this offence.

Considering all the circumstances of this case and in pursuant to section 26(1) and section 28(4) of the Sentencing and Penalties Decree, 2009, I restore part of the sentence held in suspense and order you to serve 01 year imprisonment period it with immediate effects for the offence of Breach of Suspended Sentence contrary to Section 28 (1) of the Sentencing and Penalties Decree, 2009. Both count 01 and 02, to be served concurrently with the first count.

28 days to Appeal

Lakshika Fernando
Resident Magistrate

On this 22nd day of October 2012