State v Benedito [2013] FJMC 53; Criminal Case 1708.2012 (31 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 1708/12

STATE

V

IOWANE BENEDITO

Prosecution : Sgt Jitendra, Police Prosecutor.

Accused : in person.

SENTENCE

1. You, Iowane Benedito are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 08.01.2013, for committing the offences of 'Escaping from lawful custody' and 'Damaging Property' which are punishable under Section 196 and 369(1) of the Crimes Decree No 44 of 2009.
   
2. You waived your right to legal representation.
   
3. The summary of facts states that, on 18.11.2012 at around 10.35 pm a report was received by the Central police station on an escape of four prisoners from the Suva Prison. The information was checked again and confirmed that the prisoners escaped from the Domanu dormitory of Suva prison. Further it was revealed that the escape was made through by cutting two steal grill bars of a toilet window of the dormitory.
   
4. Roll call was taken at the corrections center and it confirmed that you also were among the escapees. Ten days later the officers of Nabua police station managed to track you at Komave Settlement in Nabua. However you again resited and attempted to escape from the police officers. Somehow the officers managed to apprehend you. It was further stated that on the day of the escape you have damaged items worth of $319.61 belonged to Suva prison. This includes few blankets, re enforcing bars, chain link fence and a razor barbed wire. During the caution interview you admitted the alleged offence.
   
5. On your admission of the abovementioned summary the court convicts you for each count as charged.
   
6. You admitted the 8 previous convictions which were recorded during 2005-2010. However it is to be noted that you were not convicted on a similar offence prior to this instance.
   
7. According to the Crimes Decree No 44 of 2009, the offence of 'Escaping from Lawful Custody' falls under the category of 'Offences against the administration of lawful authority'. The maximum penalty for the offence is two years imprisonment. Further the offence 'Damaging Property' also carries two years imprisonment as the maximum penalty.
   
8. Upon a perusal of the relevant case law, the tariff for 'Escaping from Lawful Custody' had varied as follows:
   
   • (i) The tariff is between 1 to 9 months imprisonment and the starting point should be 6 months. (Savenaca pe v State [1997] HAA 0024/97; 29 May 1997)
     
   • (ii) 06 months is within the tariff. (Sakiusa Basa v State [2005] HAA 0084/05S; 16 September 2005)
     
   • (iii) Where the accused had escaped from government buildings the starting point should be 09 months. (Elefasi Kilikiti v State [2004] HAA 077/04S; 16 September 2004)
     
9. Hon. Justice Goundar held that there is no settled tariff range for the offence of damaging property. His Lordship commented as follows in the case of Tikomainiusiladi v State [(2008) FJHC 18; HAA 134.2007; 15 February 2008]:
   

"There is no set tariff for the offence of 'damaging property'. Counsel for the State has helpfully referred to two cases for guideline".

In Navitalai Seru v The State, Criminal Appeal No. HAA0084 & 85 of 2002S, a sentence of 2 years imprisonment for the criminal damage of a door valued at $250.00 was reduced to 6 months.

In State v Naqa, Criminal Appeal No.HAA0023 of 2003S, Shameem J upheld a term of 12 months imprisonment for the criminal damage of Monasavu Dam to a value of $10,000.00.

10. In view of the foregoing, I select 06 months imprisonment as the starting point for each offence.
    
11. The escape was carried out during night hours and it was made possible after cutting down two grill bars of the prison dormitory window. These are the aggravating circumstances of the first count. The sentence of the first count is increased by another 6 months for the aggravating factors. Now the sentence stands at 12 months for count one.
    
12. In the absence of any aggravating features your period of imprisonment for the second count remains at 06 months.
    
13. In mitigation, you informed Court that you are 24 years old; single man; looking after your elderly parents; asked for a lenient sentence; promised not to re-offend.
    
14. I observe that you have pleaded guilty in the first available instance and for the early guilty plea you are entitled to 1/3 reduction from your each period of imprisonment. (Akili Vilimone v State Cr.App. HAA 131/2007).
15. After the deduction the terms of imprisonment now stand at 8 months for count 01 and 4 months for count 02.
    
16. Having considered your previous criminal record the court notes that, you are not entitled to any further reduction on your term of imprisonment. This court further notes that although you have committed these two offences in the same transaction, you have caused damage to public property. View of the court is property of the prison can be considered as public property. Therefore the court is not inclined to order concurrent sentence.
    
17. I am mindful of the fact that a sentence below two (02) years could be suspended in terms of Section 26(2) (b) of the Sentencing and Penalties Decree 2009.
    
18. You escaped at a time where there was another pending case against you. And it appears that you were dined bail in that case. This shows that you were not willing to accept and abide by the orders of the court. Find of Hacksaw blades from the crime scene directs to the circumstances of how the offence was planned. These reasons make ineffective the court's decision to suspend your term.
    
19. Therefore Iowane Benedito today you are sentenced 8 months imprisonment for the offence of 'Escaping from Lawful Custody' under section 196 of the Crimes Decree No 44 of 2009. Consecutively you will serve another 4 months as the sentence of the offence 'Damaging Property' contrary to 369(1) of the Crimes Decree No 44 of 2009.
    
20. Twenty eight (28) days to appeal.
    

Pronounced in open court,

Yohan Liyanage
Resident Magistrate

31st January 2013