State v Veikoso [2014] FJMC 140; Criminal 787.2014 (29 October 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: -787/2014

STATE

V

KOROI VEIKOSO
SERU KOROI

Counsels: Mr. Qalinauci for the State
Ms. David ( Legal Aid) for both accused

SENTENCE

1. KOROI VEIKOSOI, SERU KOROI you both were charged in this Court for following offences;
   

COUNT 1

AGGRAVATED BURGLARY: contrary to Section 313(1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Koroi Veikoso and Seru Koroi on the 2nd day of February 2014 at Lot 30 Volavola Road, Samabula in the Central Division, broke and entered into the dwelling house of Patelisio Patelisio with intent to commit theft therein.

COUNT 2

THEFT: contrary to Section 293(1) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Koroi Veikoso and Seru Koroi on the 2nd day of February 2014 at Lot 30 Volavola Road, Samabula in the Central Division, dishonestly appropriated a digital camera, 10 bottles of red label whiskey, a bottle of Caribbean rum, 4 T-shirts, a small Tongan Rugby jersey, blue underwear, 3 cans of corned beef, a packet of noodles, a Samsung flat screen television valued at $1,020.00 and Panasonic brand microwave valued at $220.00, the properties of Patelisio Patelisio.

2. The High Court gave extended jurisdiction to hear this matter and on 08th August 2014 you both pleaded guilty for this charge and also admitted the summary of facts tendered by the State.
   
3. According to the summary of facts on 02nd of February 2014 you both broke in to the complainant's flat and stole the items mentioned in the charge.
   
4. After considering both of your pleas unequivocal I convict you both for this charge.
   

LAW AND TARIFF

5. Maximum penalty for the offence of Aggravated Burglary is 17 years imprisonment.
   
6. In State v Josevata Lesumailodoni & Ors. HAC 94.2013s, his Lordship Justice Temo said:
   

"Aggravated Burglary carried a maximum sentence of 17 years imprisonment (section 313(1) of the Crimes Decree 2009). In the repealed Penal Code, Chapter 17, 'burglary' carried a sentence of life imprisonment (section 299 of Penal Code). In Viliame Gukisuva v. The State. Criminal Appeal No. HAA 177 of 2007, High Court, Suva, Her Ladyship Madam Justice N. Shameem held that the tariff was a sentence between 2 or 3 years imprisonment."

7. In Mikaele Ratusili v. State, Criminal Appeal No. HAA 011 of 2012 [Labasa], his Lordship Justice Madigan observed:
   

'In the case of Chand HAA 30 of 2007 in a case of housebreaking and larceny, Mataitoga J. said the tariff for larceny was between two to three years. Unfortunately the learned Judge did not explain this high tariff, nor did he make reference to the facts that pertained to that case.In the case of Niudamu HAA 28 of 2011, this Court held that the tariff for theft by a first offender should be two to nine months.'

8. Madigan J also referred to Jone Saukilagi HAC 21 of 2004 where Madam Shameem said:
   

"the tariff for simple larceny on a first conviction is from two to nine months and on a second conviction a sentence in excess of nine months. In cases of larceny of large amounts of money sentences of 18 months to three years have been upheld by the High Court. (Sevanaia Via Koroi HAA 31 of 2001). Much depends on the value of the money stolen and the nature of the victim and defendant. The method of stealing is also relevant."

9. His Lordship, Madigan J, after analyzing the cases of larceny and theft then the following sentencing principles is established:
   
   • (1) For a first offence of simple theft the sentencing range should be between 2 and 9 months.
     
   • (2) Any subsequent offence should attract a penalty of at least 9 months.
     
   • (3) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.
     
   • (4) Regard should be had to the nature of the relationship between offender and victim.
     
   • (5) Planned thefts will attract greater sentences than opportunistic thefts.
     

AGGRAVATING FACTORS

10. Following are aggravating factors in this case.
    
    1. Premeditated action
    2. Disregard of the property rights of other people.
       

MITIGATING FACTORS

11. Following were submitted as mitigating factors.
    

1st accused

1. 28 years old
2. Married with two children

100. Seeks forgiveness

4. Most of the items were recovered
   

2nd accused

1. 20 years old
2. Single

100. Seeks forgiveness

4. First offender
5. Most of the items were recovered
   

12. Considering the facts in this case for both of you I select 26 months as my starting point for the 1st count and 06 months as the starting point for 2nd count. For aggravating factors I add 10 months to reach 36 months for the 1st count and 16 months for the 2nd count.
    
13. For the mitigating factors I deduct 06 months to reach 30 months for the 1st and 10 months for the 2nd count. For pleading guilty early you both will be given full credit and therefore I deduct 1/3 to reach 20 months for the first count and 06 months for the second count.
    
14. As the final adjustment I consider the time you both were in remand and deduct that period ( 2 months) to reach 18 months for the 1st count and 04 months for the 2nd count.
    
15. Considering the totality principle these sentences to be concurrent.
    
16. Pursuant to section 26(2) ( b) of the Sentencing and Penalties Decree this Court has the power to suspend a sentence below 02 years and this was urged by the defence in their mitigations for the purpose of rehabilitation . On the other hand the State in their submission is seeking a custodial sentence for both of you.
    
17. KOROI VEIKOSOI you are not a first offender. Considering your past convictions I do not think it is appropriate to suspend your sentence. Accordingly you are sentenced to 18 months imprisonment for the 1st count and 04 months imprisonment for the 2nd count to be served concurrently.
    
18. SERU KOROI , even though you are equally liable for these offences considering your young age as well as past good behavior I believe you need a chance to reform. Therefore you are sentenced to 18 months imprisonment for the 1st count and 04 months imprisonment for the 2nd count and these will be suspended for 03 years.
    
19. If you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.
    
20. Also as requested by the State the recovered items to be returned to the complainant.
    
21. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

29th of October 2014

H.S.P. Somaratne
Resident Magistrate, Suva