State v Koroi - Sentence [2017] FJMC 103; Criminal Case 412.2017 (15 August 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: -412 /2017

HAC 230/2017

STATE

V

EREMASI KOROI
SAVENACA LOTAU

For the Prosecution: Sgt.Rao
The accused: In Persons

Date of Sentence: 15^th of August 2017

SENTENCE

1. EREMASI KOROI, SAVENACA LOTAU, you both were charged with two counts of Aggravated Burglary contrary to Section 313(1)(a) of the Crimes Act No 44 of 2009 (“Crimes Act”) and two counts of Theft contrary to section 291(1) of the Crimes Act.
2. The High Court gave the extended jurisdiction to hear this case and on 07^th August 2017 you both pleaded guilty and admitted the following summary of facts presented by the prosecution:

On the 4th day of May, 2017 one SAT NARAYAN (PW-1), 63 years, School Manager and one RAMESH CHAND (PW-2), 42 years, Head Master both of Saraswati Primary and Saraswati College personally reported that both school were broken into by unknown person.

On 04/06/17, (PW-1) at about 7.00am went to check the Saraswati College as he is currently the School Manager. Upon entering the school compound, (PW-1) went directly to the Principal’s Office as he had received a call from the school’s handyman that the school had been broken into. When he entered the office, (PW-1) noticed that the Principal’s Office to be ransacked and everything scattered.

On the above same date, at about 11.30am (PW-2) received call from the school handyman that the Head Masters Office had been broken into. Through check was made whereby everything was scattered everywhere with 2 x laptops, 1 x hard drive, school text books, milk and weet bix were missing.

Upon investigation, one Eremasi Koroi (Acc-1), 22 years, Farmer of Qiolevu Road, Naitasiri and Savenaca Lotua (Acc-2), 20 years, FNU Student of Waila Nausori was arrested whereby they admitted to the allegation of the school breaking and theft.

Both (Acc-1) and (Acc-2) were subsequently charged for the offence of Aggravated Burglary contrary to Section 313 and Theft contrary to Section 29(1) of the Crimes Act of 2009.

3. I am satisfied that you both pleaded guilty on your own free will after understanding the consequences .Accordingly I convict you both for this charge.
4. Maximum penalty for the offence of Aggravated Burglary under the Crimes Act is 17 years imprisonment.
5. The accepted tariff is between 18 months and 03 years as highlighted by the court in Niudamu v State FJHC 661; HAA 028.2011(20 October 2011) .
6. The prescribed penalty for the Theft is 10 years imprisonment under the Crimes Act 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.

7. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"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 time. 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.

8. Considering the above judicial precedents and based on the objective seriousness of the offending, I select 02 years as the starting point for each count of Aggravated Burglary offence for both of you.
9. The properties that you stole belong to the Ministry of Education meaning they are public properties. I consider that as aggravating factor add 10 months to reach 34 months imprisonment.
10. In mitigation submission you both submitted the following:

1^st accused

1. 23 years old;
2. Single

100. Farmer;

4. Seeking forgiveness;
5. First offender.

2^nd accused

1. 20 years old;
2. Single;

100. FNU Student ;

4. First offender.

11. For all these mitigating factors I deduct 07 months to reach 27 months imprisonment.
12. You both pleaded guilty at the first available opportunity and for that I deduct 1/3 to reach 18 months imprisonment for the Aggravated Burglary.
13. Considering all the circumstances, I sentenced you both to 04 months imprisonment to the Theft counts to be served concurrent with the sentences for the Aggravated Burglary.
14. Your final sentence are as follows:

1^st count (Aggravated Burglary) – 18 months

2^nd count(Theft) – 04 months

3^rd count( Aggravated Burglary ) – 18 months

4^th count( Theft) – 04 months

15. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
16. Even though you both are young first offenders, I do not think suspending this sentence is suitable in this case. During the night you both broke in to two public schools and stole public properties that were available for the school children. The behaviors of both of you need to be denounced and also this sentence needs to be deterrence for others from committing similar offences in this area. Hence in my view a custodial sentence is warranted to fulfill these objectives.
17. EREMASI KOROI, SAVENACA LOTAU, based on the above mentioned reasons; I am going to sentenced you both to 18 months imprisonment for this charge. Since you both are in remand for nearly 01 month pursuant to section 24 of the Sentencing and Penalties Act I consider that as period you have already served. Hence you both have to serve 17 months imprisonment effective from today.
18. 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