State v Tuinaceva [2016] FJMC 77; Criminal Case 910.2016 (16 June 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 910/16

STATE

-v-

VILIAME LUTU TUINACEVA

:

SENTENCE

INTRODUCTION AND CHARGE

The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

FIRST COUNT

BURGLARY: Contrary to Section 312(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VILIAME LUTU TUINACEVA on the 27th day of May 2016 at Nabua in the Central Division entered into the dwelling house the property of LakshayKallipan as a trespasser with intent to steal.

SECOND COUNT

THEFT: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VILIAME LUTU TUINACEVA on the 27th day of May 2016 at Nabua in the Central Division dishonestly appropriated (stole) 5 x (2 feet) Tinted Louver blades valued at $16.90 the property of LakshayKallipan with intention to permanently deprive LakshayKallipan of the said property.

STATEMENT OF FACTS

Statement of facts which you have admitted is reproduced here;

1) On 27/6/16 at about 9am, LakshayKallipan PW1, 23 years, businessman of 535 Ratu Mara Road, Nabua arrived at his vacant house at 25 Lemeki Street, Vatuwaqa, Nabua with a man to cut his grass at the vacant house, he discovered that about 80 piece tinted (2 feet) louver blades valued at $270.00 was missing from the bathroom window.

2) The matter was reported at Nabua Police Station.

3) Investigations was carried out whereby JekopeNodrakoro PW2, 20 years, unemployed of 286 Wailea Settlement, Vatuwaqa was brought in for trespassing into PW1’s vacant house on 31/5/16 and upon questioning PW2 be stated that he was handed over 5 x (2 feet) tinted louver blades by ViliameLutuTuinaceva Accused,32 years, unemployed of Wailea Settlement, Vatuwaqa to keep and then later the accused came back to take the items from PW2.

4) The accused was arrested and interviewed under caution whereby admitted to the allegation put to him as he stated that he climbed over the fence and into a sliding window and removed the items were not recovered.

MAXIMUM SENTENCE

COUNT ONE

In terms of Section 312 of the Crimes Decree the maximum penalty for this offence is 13years imprisonment

COUNT TWO

In terms of Section 291 of the Crimes Decree the maximum penalty for this offence is 10 years imprisonment

TARIFF

FOR COUNT ONE

In State v Mucunabitu[2010] FJHC 151; HAC 017.2010 (15 April 2010) it was held that the accepted tariff is 18 months to 3 years for Burglary

FOR COUNT TWO

Following sentencing principles were established in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012)

(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.

AGGRAVATING FACTORS

No aggravating factors

MITIGATING FACTORS

1. Early guilty plea
2. Promise not to reoffend
   

CONCLUSION

I start with 27 months imprisonment for the 1^st count and 9 months imprisonment for the 2^nd count.

Since you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third in view of the judgment in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005. Accordingly your sentence for the 1^st count reaches 18 months imprisonment and 6 months imprisonment for the 2^nd count.

The prosecution has reported 1 previous conviction for Damaging of Property on 28.09.2011. Therefore you are not entitled to the credit for good character that a first offender is entitled to.. [ Vide The State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90] where it was held “Young first offenders should not be sent to prison, unless there are compelling reasons to do so”]

However the previous conviction and the offences in this case are not similar offences though private property is involved in both of these suits. The lapse of time since the previous conviction and the date of commission of this offence is a considerable factor in sentencing according to the precedents considered below.

In Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5 March 2013) it was observed that

“In my judgment the lack of correlation between the two offences and the considerable lapse of time were relevant in assessing the good character of the appellant. The lack of consideration of these factors led the trial judge to erroneously disregard the previous good character of the appellant. Some reduction should have been made in sentence to reflect the previous good character of the appellant. There was no correlation between the two offences. One was a dishonest offence while the other was a drug offence.”

In R v. Smith (1983) 5 Cr. App.R(s) 61] following the judgment in Koroivuki v State [supra]it was held that

"There are situations where, notwithstanding a previous conviction, it is appropriate to treat the offender as being rehabilitated and of good character. This will be especially so if there has been a last considerable lapse of time since the conviction”

Accordingly I observe that since the previous conviction up to the date of this offence you have a clean record for nearly 5 years. Apart from this fact I consider value of the property of this case as well. Therefore I decide to suspend your sentence for 7 years.

If you commit any offence punishable by prison sentence during the 7 years you can be charged under section 28 of the Sentencing and Penalties Decree.

In addition $200 fine is imposed for each count and 20 days imprisonment in default. The fine is amounting to $400 for out of which $270 should be paid as compensation to the aggrieved partyin terms of Sec 153 (1) (b) of the Criminal Procedure Decree 2009.

SUMMARY OF THE SENTENCE

FOR COUNT ONE

1. 18 months imprisonment suspended for 7 years
2. $200 fine and 20 days imprisonment in default

FOR COUNT TWO

1. 6 months imprisonment suspended for 7 years
2. $200 fine and 20 days imprisonment in default
   

$270 to be paid as the compensation out of the above mentioned fine

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

On 16^th Day of June 2016