State v Dakuwaqa - Sentence [2017] FJMC 83; Criminal Case 320.2017 (28 June 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: -320/2017

HAC 178/2017

STATE

V

VILIAME DAKUWAQA

JOPE SUKA

JOSUA QADUADUA

ESALA MAKUBUNA

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

Date of Sentence: 28^th of June 2017

SENTENCE

1. VILIAME DAKUWAQA, JOPE SUKA JOSUA QADUADUA ESALA MAKUBUNA, you all were charged with one count of Aggravated Burglary contrary to Section 313(1)(a) of the Crimes Act No 44 of 2009 (“Crimes Act”) and one count 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 27^th June 2017 you all pleaded guilty for this charge.
3. You all admitted the following summary of facts presented by the prosecution:

On the 22nd day of May, 2017, (PW-1) and (PW-2) left for Nasukamai, Ra to go to their dalo farm leaving the house empty and securely locked. On theFriday, 26th day of May, 2017 at about 8.00pm, Samuela Bogidrau (PW-1), 38 years, farmer of Bautikina and his wife namely Sainimelia Druadrua (PW-2), 33 years, farmer reported a case of break-in at their residence. Matter was reported to police whereby a thorough investigation was conducted.

Upon police enquiry, one Kulinio Rokovereni (PW-3), 17 years, student and Ilisoni Suguturaga (PW-4), 21 years, Carpenter informed the police that the following; Viliame Dakuwaqa (Accused-1), 18 years, unemployed of Bautikina, Jope Suka (Accused-2), 23 years, Handman of Bautikina, Josua Qaduadua (Accused-3), 23 years, Carpenter of Bautikina and Esala Makubuna (Accused-4), 20 years, labourer of Bautikina and Esala Makubuna (Accused-4), 20 years, labourer of Bautikina unlawfully entered and broke into the house of (PW-1) and (PW-2).

Between the 22nd day of May, 2017 to the 26th day of May, 2017, (Accused -1), (Accused-2), (Accused-3) and (Accused-4) unlawfully entered the house of (PW-1) and (PW-2) and stole the following items; 1x Adidas canvas valued at $120.00, Assorted food items valued at $120.00, 1x Hisense double door refrigerator valued at $1,500.00, 1 x 4 burner Modyl gas stove valued at $400.00, 1 x brush cutter valued at $1,200.00, 3 x rugby jerseys valued at $240.00, 7 x blankets valued at $350.00, 1 x spray pump valued at $40.00, 1 x mattress valued at $180.00, 9 x cooking pots valued at $350.00, assorted cooking utensils valued at $150.00, toiletries valued at $100.00, and 8 litre benzene valued at $20.00 all to the value of $5,020.00. (Accused -), (Accused-3) and (Accused-4) stopped an oncoming vehicle then loaded the said items into the said vehicle of one Netava Lomasalato (PW-5), 33 years, Military Officer of Newtown, Nausori Town who then brought them to Nausori Town and dropped them off at Newtown , Nausori Town.

During the course of investigation, the stolen items were recovered from one Joana Teivalu Brown (PW-6), 37 years, self-employed of Nausori Village, Nausori who stated that (Accused-2), came and requested to drop off the stolen items as he is in need of money. (PW-6) then gave (Accused-2) $250.00 after he stated that he will come and take the items back after he pays the $250.00.

Later, (Accused-1). (Accused-2), (Accused-3) and (Accused-4) were all arrested, interviewed under caution and later charged on the following counts:

Count 1: Aggravated Burglary contrary to Section 313(1) (a) and Count 2: Theft contrary to Section 291 (1) both of Crimes Act No: 44 of 2009. The following items were recovered and exhibited after search was conducted: 1 x Modyl 4 burner gas stove, 1 brush cutter, 2 x cooking pots, 1 x double door Hisense refrigerator, 1 x spray pump, 1 x mattress, 4 x blankets and 1 x dark blue suitcase.

Evidence to be tendered:

Interview Notes of Viliame Dakuwaqa

Interiview Notes of Jope Suka

Interview Notes of Josua Qaduadua

Interview Notes of Esala Makubuna

Charge Statement of Viliame Dakuwaqa

Charge Statement of Jope Suka

Charge Statement of Josua Qaduadua

Charge Statement of Esala Makubuna

1 x Modly 4 Burner gas stove

1 x Brush Cutter

2 x Cooking potsd

1 x double door Hisense Refrigerator

1 x spray pump

1 x mattress

4 x blankets

1 x dark blue suitcase

4. I am satisfied that you all pleaded guilty on your own free will after understanding the consequences .Accordingly I convict you all for this charge.
5. Maximum penalty for the offence of Aggravated Burglary under the Crimes Act is 17 years imprisonment.
6. 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) .
7. 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.

8. 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.

9. Considering objective seriousness of the offending, I select 02 years as the starting point for Aggravated Burglary offence for all of you.
10. According to caution statements of the accused it appears that this was premeditated and for that I add 10 months to reach 34 months imprisonment.
11. In mitigation submission you all submitted the following:

1^st accused

1. 18 years old;
2. Farmer;

100. Seeking forgiveness;

4. First offender.

2^nd accused

1. 23 years old;
2. Single;

100. Carpenter;

4. First offender.

3^rd accused

1. 23 years old;
2. Single;

100. First offender.

4^th accused

1. 23 years old;
2. Single;

100. First offender.

12. Further the prosecution confirmed most of the stolen items were recovered. For all these mitigating factors I deduct 07 months to reach 27 months imprisonment.
13. Pleading guilty at the first available opportunity finally I deduct 1/3 to reach 18 months imprisonment for the Aggravated Burglary.
14. Considering all the circumstances I sentenced you all to 04 months imprisonment to the Theft count to be served concurrent with the 1^st count.
15. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
16. You all are young offenders as well as first offenders. Without wasting the time of the court you pleaded guilty and most of the stolen items have been recovered. Even though this unlawful home invasions need to be denounced I am also mindful of harm that would cause to the society by allowing the young first offenders like these accused to mix with hardcore criminals in the correction centers. There is a danger of these young offenders to associate with criminals in correction centers and after being released to reoffend again with greater harm to the public. But giving a suspended sentence would allow them to rehabilitate whilst staying with their families. Also suspended sentence would operate as deterrence. If they reoffend during the operational period they are liable to serve their prison sentence that is suspended by the court.
17. VILIAME DAKUWAQA, JOPE SUKA JOSUA QADUADUA ESALA MAKUBUNA, based on the above mentioned reasons, I am going to sentenced you all to 18 months imprisonment for this charge and this will be suspended for 03 years.
18. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Act.
19. Further each of you has to pay $500.00 as compensation to the complainant for his stolen items that were not recovered.
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