State v Bainikoro [2017] FJMC 32; Criminal Case 23.2016 (3 March 2017)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No. 23 of 2016

STATE

v

1. PITA BAINIKORO
2. SAMUELA TAVUKI
3. ILAITIA MARISELO
   

For the Prosecution : Ms Elo. W

For the Accused : All in person

Sentence : 3 March 2017

SENTENCE

1. The Accused, Pita Bainikoro, Samuela Tavuki, and Ilaitia Mariselo, you are all before this court today for sentence after being convicted to the charges of Aggravated Burglary and Theft, contrary to sections 313(1)(a) and 291(I) of the Crimes Decree 2009.
   
2. On 21 January 2016, you all waived your rights to counsel. The first and third accused pleaded guilty to both the counts on 15 April 2016. The second accused pleaded guilty to both the counts on 3 August 2016. I find all your plea to be unequivocal.
   
3. The brief summary of facts are ;-
   

“On 15 January 2016, Fakaema Miller the shipping officer at Bligh Water Shipping at about 10pm locked the office and left $1,503.00 in the till. At about 8am on the next day he notice that the office padlock had been forced open He walked into the office and saw that the office had been ransacked and the drawer where the cash till was kept had been opened. He noticed that the till had been stolen with some mats valued $425.00. On investigation all the Accused were arrested, charged and fully admitted to the allegations.”

4. All of you admitted to the above summary of facts on 24 October 2016 and you are all convicted as charged.
   
5. The maximum penalty for Aggravated Burglary is 17 years imprisonment. The tariff was set in State v Mikaele Buliruarua [ 2010] FJHC 384, and ranges from 18 months to 3 years imprisonment. The maximum penalty for Theft is 10 years imprisonment. The tariff was set in Vakarauvanua v The State [2004] FJHC 116, for 2 to 9 months for simple theft and 9 months and more for repeated offenders.
   
6. The Aggravating factors in this case are;-
   • (i) This is a well plan burglary and theft.
   • (ii) It is a commercial burglary and theft.
   • (iii) You shared the unrecovered items among yourselves.
   • (iv) Some of the stolen items were not recovered.
     
7. The mitigating factors are;-

First Accused

(i) 19 years old and first offender.
(ii) Peer pressure and promise not to re-offend.
(iii) Ask for a second chance and seek the court forgiveness.

Second Accused

(i) 23 years old and first offender.
(ii) Married with 1 child.
(iii) Ask for the court forgiveness and promise not to re-offend.
(iv) Ask for second chance

Third Accused

(i) 23 years old.
(ii) Seek the court forgiveness and promise not to re-offend.

8. In sentencing, my starting point for Aggravated Burglary is 2 years and 3 months.
   
9. I add 1 year and 4 months for the aggravating factors and that increases all your sentence to 3 years and 7 months. I reduce all your sentence by 8 months for your individual mitigation and that reduce all your sentence to 2 years and 11 months.
   
10. You all entered an early guilty plea and you are all entitled to a one third reduction. I therefore reduce all your sentence by 11 months and that further reduce your sentence to 2 years imprisonment.
    
11. Both the offences were committed together under one circumstance. In compliance with the one transaction rule imposed by the Supreme Court in Wong Kam Hong v The State (unreported) Criminal Appeal No. CAV 0002 of 2013 (23 October 2013), I impose 8 months imprisonment as your sentence for the count of Theft.
    
12. The final sentence for all of you are as follows:-
    • (i) Aggravated Burglary - 2 years imprisonment.
    • (ii) Theft - 8 months imprisonment.
      
13. I have drawn my attention to the case of Navin v The State [2006] FJHC6; HAA 0148J. 2005S (9 February 2006), where the High Court has provided for the approach to be taken for young and first offenders. You are all convicted for Aggravated Burglary which is an indictable offence and that shows the seriousness of the offence. Therefore, suspended sentence is not appropriate in this case.
    
14. Pita Bainikoro, Samuela Tavuki, and Ilaitia Mariselo you are now sentence as follows;-
    
    1. Count 1- Aggravated Burglary – 2 years imprisonment.
    2. Count 2- Theft – 8 months imprisonment.
    100. Sentence for both the counts are to be served concurrently with a non parole period of 12 months.
         

28 days to appeal.

C. M. TUBERI
RESIDENT MAGISTRATE