State v Cokolaca [2016] FJMC 58; Criminal Case 1822.2015 (6 May 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: -1822/2015

STATE

V

ILAITIA COKOLACA
VILIMONI VEILAWA
ONISIMO TAUKEISO

Counsel : Ms.S.Lodhia for the State
Ms.Choy(LAC) for the 1^st accused
Mr.A.Chand(LAC) for the 2^nd accused
Ms.L.David(LAC) for the 3^rd accused

Date of Sentence: 06^th of May 2016

SENTENCE

1. ILAITIA COKOLACA, VILIMONI VEILAWA, ONISIMO TAUKEISO you all were charged with one count of Aggravated Burglary contrary to Section 313(1)(a) of the Crimes Decree and one count of Theft contrary to section 291(1) of the Crimes Decree.
2. You all pleaded guilty and admitted the summary of facts presented by the State on 21^st Of March 2016.
3. According to facts between 27^th and 28^th of October 2015 all of you broke in to the tool room of the complainant and stole tools to the total value of $1,574.00.
4. I am satisfied that you all pleaded guilty on your own free will after understanding the consequences and therefore convict you 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 In the repealed Penal Code, Chapter 17, ‘burglary’ carried a sentence of life imprisonment (section 299 of Penal Code).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. The prescribed penalty for the Theft id 10 years imprisonment and the tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said :

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) 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.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

8. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

9. Considering gravity of offending, I select 02 years as the starting point for Aggravated Burglary offence.

AGGRAVATING FACTORS

10. The caution interviews of the accused shows that this was premeditated and for that I add 06 months to reach 30 months imprisonment for the Aggravated Burglary.

MITIGATING FACTORS

11. Following were submitted as mitigating factors in the mitigating submissions.

1^st accused

1. 23 years old;
2. Single ;

100. First offender;

4. Co-operated with the police;
5. Stolen items recovered.

2^nd accused

1. 25 years old;
2. Single ;

100. Co-operated with the police;

4. First offender.

3^rd accused

a) 18 years old;

b) Single;

c) First offender.

12. I accept these mitigations apart from the character of the 1^st accused. Even though the counsel for the 1^st accused informed this court that he is a first offender his admitted previous convictions shows different picture. But for the other mitigating factors and period in remand (18 days for the 1^st and 2^nd accused) I deduct 06 months to reach 24 months imprisonment for the 1^st count.
13. After being served with disclosures and getting the proper legal advice you all have pleaded guilty early and giving full credit I deduct 1/3 to reach 18 months imprisonment for the 1^st count. Considering all the facts I sentenced you all to 06 months for the Theft count to be served concurrently.
14. Now I have to consider whether to suspend this sentence. The State is asking for deterrence sentence whilst the counsel for all the accused are asking for a non-custodial sentence to allow their clients to reform.
15. VILIMONI VEILAWA, ONISIMO TAUKEISO, you both are young first offenders and pleaded guilty at the earliest opportunity. You also co-operated with the police with investigation. Therefore I believe a suspended sentence would be appropriate which would allow you the chance to reform whilst living in the society.
16. VILIMONI VEILAWA, ONISIMO TAUKEISO, accordingly I sentenced both of you to 18 months imprisonment for the 1^st count and 06 months for the 2^nd count and these are suspended for 03 years.
17. ILAITIA COKOLACA, the summary of facts and your caution statement shows that you played the major part in these offences and also benefited from the unlawful activities. Further you worked for the complainant as a painter and using the knowledge of that place committed these offences which point to some breach of trust also.
18. In 2013 you were given a suspended sentence for a Theft offence in CF 2105/2010 and the operational period of that sentence finished on 18/10/2015. You committed these offences soon after that. The purpose of giving a suspend sentence is to allow an accused to reform. But your behavior shows that you were waiting for the suspend sentence to finish so you can get back to the criminal activities. Therefore the main purpose of your sentence is the protection of the community and the general and special deterrence.
19. Accordingly you are sentenced to 18 months imprisonment for the offence of Aggravated Burglary and 06 months imprisonment of Theft to be served concurrently. Pursuant to section 18(3) of the Sentencing and Penalties Decree I also fix 12 months as the non-parole period.
20. 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.
    

Shageeth Somaratne

Resident Magistrate, Suva