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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 001 OF 2012 AND HAC 002 OF 2012
BETWEEN:
STATE
AND:
NAVITALAI DELA
(1st Accused)
PENI YALIBULI
(2nd Accused)
RATU VILIAME VAKATALESAU
(3rd Accused)
SERU AREVAKESAKU
(4th Accused)
Counsel : Mr S Kiran for the State
Accused all in Person
Date of Sentence : 4th May 2012
SENTENCE
1. There are two cases filed against the Accused persons above named and the case numbers are HAC 01/2012 and HAC 02/ 2012.
2. Since both charges are similar to each other and committed in the same period (not in the same course of transaction) one sentence passed against them.
3. In HAC 01/2012 these three Accused Persons were charged by the Director of Public Prosecution as follows:
COUNT 1
Statement of Offence (a)
AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of CRIMES DECREE, 2009.
Particulars of Offence (b)
PENI YALIBULA, NAVITALAI DELA and RATU VILIAME VAKATALESAU, in company with each other, on the 6th day of December 2011 at Lautoka in the Western Division, entered into DAHIA SHOES as trespassers with intent to commit theft therein.
COUNT 2
Statement of Offence (a)
THEFT: Contrary to Section 291(1) of the Crimes Decree, 2009
Particulars of Offence (b)
PENI YALIBULA, NAVITALAI DELA and RATU VILIAME VAKARALESAU, on the 5th day of December 2011 at Lautoka in the Western Division dishonestly appropriated 92 pieces of slip-on sandals valued at $473.60, 4 x belts valued at $160.00, 31 pairs of Safety Boots valued at $1,129.65, 10 pairs of sandals valued at $862.50, 6 pairs of socks valued at $50.40, 5 x shoes polish valued at $30.42 and 15 bags valued at $256.80 belonging to DAHIA shoes, with intent to permanently deprive the said Dahia Shoes of the properties thereof.
4. In HAC 02/2012, these 3 persons and another by the name of Seru Arevakasaki was charged as follows:
COUNT 1
Statement of Offence (a)
AGGRAVATED BURGLARY: Contrary to Section 313(1) (a) of the CRIMES DECREE, 2009
Particulars of Offence (b)
PENI YALIBULA, NAVITALAI DELA, SERU AREVAKASAKI and RATU VILIAME VAKARALESAU, in the company with each other, on the 5th day of December 2011 at Lautoka in the Western Division, entered into JAI SHREE RESTAURANT as trespassers with intent to commit theft therein.
COUNT 2
Statement of Offence (a)
THEFT: Contrary to Section 291 (1) of the CRIMES DECREE, 2009
Particulars of Offence (b)
PENI YALIBULA, NAVITALAI DELA, SERU AREVAKESAKI and RATU VILIAME VAKARALESAU, on the 5th day of December 2011 at LAUTOKA in the WESTERN DIVISION, dishonestly appropriated $120.00 cash, 5 packets of "Rothman 20" cigarettes valued at $35.00, 6 packets of "Rothman 10" cigarettes valued at $21.60, 10 packets of "Benson & Hedges 10" cigarettes valued at $32.00, 10 packets of "Pall Mall Red" cigarettes valued at $30.00, 3 packets containing frozen chicken, prawn and fish valued at $91.75, 6 x Gross of "Benson & Hedges 20" cigarettes valued $360.00, 4 x gross of "Benson & Hedges 10" cigarettes valued at $220.00, 1 x gross of "Rothman 20" cigarettes valued at $71.00, 1 x gross of "Rothman 10" cigarettes valued at $72.00 and 1 x gross of "Pall Mall" valued at $120.00 belonging to JAI SHEE RESTAURANT of the properties thereof.
5. In HAC 01/2012, all 3 Accused Persons pleaded guilty of both charges and presented by the State Counsel. Summary of facts were re-produced for easy reference.
"The first accused is one Navitalai Dela 25 years old, unemployed of Kaleli settlement. The second accused Peni Yalibula is 23 years old, unemployed of Kaleli settlement as well while the third person is a juvenile, one Ratu Viliame Vakatalesau, 15 years old, unemployed of Sukanaivalu Road, Lautoka.
On the 6th December 2011 at 5.30pm, Sairaj Ali, Manager of Dahia Shoes situated at Vitogo Parade, Lautoka closed the shop for the day.
On the above date at about 11pm, the first accused Mr Navitalai Dela, 2nd accused Mr Peni Yalibula, 3rd Accused Ratu Viliame Vakatalesau with Seru and Kanito were drinking sprit at the car wash before heading to Hunters Inn Night Club.
First Count : Aggravated Burglary
On the way along Vitogo Parade Mr Dela picked up a stone from a flower garden near Dahia Shoes and threw it at the glass front of the said shop. Accused two Mr Yalibula was walking along the same street when he heard a loud bang behind. He turned back and entered the shop. Mr Dela went in first followed by Mr Yalibula and Ratu Viliame.
Second Count : Theft
Mr Dela packed a bag with shoes; Mr Yalibula went for the cash till in the shop but did not get any money out of it. Mr Vakatalesau on the other hand took a bag and ran outside to hide it, when he returned from hiding his bag; he saw three men chasing his friends so he also ran and jumped in the sea.
The manager Mr Ali was informed that their shop has been broken into he came to the shop and found the following items missing:
- 92 pairs of slip on sandals valued at $473.60
- 4 belts valued at $160.00
- 31 pairs of safety boots valued at $1129.65
- 10 pairs of sandals valued at $862.50
- 6 pairs of socks valued at $50.40
- 5 shoe polish valued at $30.42
- 15 bags valued at $256.80.
Computer in the shop was damaged costing them $580.00. A printer valued at $300.00 was also damaged, along with another printer valued at $1035.00 and fax machine valued at $300.00.
The total valued of the items stolen is $2963.37. The total damage incurred by the complainant company as a direct result of this offence is $2215.00.
Matter was reported and the 3 named accused were arrested and caution interviewed where they admitted committing the offence. Upon investigation the following items were recovered:
- 2 "Go Fiji Go" carry bag
- 8 ladies slip on sandals (1 from the pair)
- 1 knapsack bag
- 5 safety and sandals (1 from the pair)
- The estimated valued of recovery is $400.00 for one pair of the shoe.
6. Similarly in HAC 02/2012 all 3 Accused Persons pleaded guilty and admitted the Summary of Facts submitted by the State Counsel. The same is re-produced for easy reference.
"The first accused is Peni Yalibula is 23 years old, unemployed of Kaleli settlement. The second accused, Navitalai Dela, 25 years old, unemployed of Kaleli settlement s well, the third accused is one Seru Arevakasaki while the fourth accused person is a juvenile, one Ratu Viliame Vakatalesau 15 years old of Sukanaivalu Road Lautoka.
On the 19th of November 2011 Mr. Jai Shree Gouwnedear owner of Jai Shree Restaurant travelled to India. Ms Akesa Heritage was in charge of the restaurant.
On the 5th of December 2011 at 4.50pm Ms. Akesa Heritage closed shop for the day.
On Monday 5th December 2011 at about 10pm the 1st accused Mr Peni Yalibula, second accused Mr Navitalai Dela and the third accused Ratu Viliame Vakatalesau with Seru and Kanito were drinking alcohol at the second accused house and later at a car wash in town before heading to Hunters In Night Club.
First Court : Aggravated Burglary
On the way along Vitogo Parade which was between 10pm – 11pm they went passed Jai Shree Restaurant. Apparently, Mr Dela picked up a stone and threw it at the show glass to the restaurant. The first accused then removed the grill bars to the restaurant and the first, second and third accused entered the restaurant while the forth accused stood guard at Vitogo Parade.
Second Count : Theft
Inside the restaurant the men worked together and removed cigarettes, cash and other items from the restaurant.
The manager Ms Heritage and Mr Gouwnedear did a stock take and found the following items missing:
5x1 Rothman 20's – total value $35.00
6x1 Rothman 10's – total value $21.60
10x 1 Benson & Hedges 10's– total value $32.00
10x1 Pall Mall red – total value - $30.00
$120 cash
3 plastic bags chicken, prawn and fish – total value $91.75
6x gross of Benson & Hedges cigarettes 20 – total value $360.00
4xGross of Benson & Hedges cigarettes 10 – total value $220.00
1 x gross Rothmans 20 – total value $71.00
1xGross Rothmans 10 – total value $72.00
1xgross Pall Mall 10 – total value $120.00
The total value of items stolen is $1360.00.
They then fled from there and shared the items stolen at a house in Kaleli.
Matter was reported and the accused persons were arrested and caution interviewed where the first, second and forth admitted committing the offence.
No items were recovered from any of the accused person"
7. Convinced with the Plea of the Accused Persons being unequivocal, the Court found them guilty and convicted them under Section 313(1) and 291 of the Crimes Decree for Aggravated Burglary and Theft respectively.
8. Section 313(1) of the Crimes Decree prescribes a maximum sentence of 17 years imprisonment.
9. Section 291 of the Crimes Decree prescribes a maximum sentence of 10 years imprisonment.
10. Considering the tariff to the offence of Aggravated Burglary was discussed in Maharaj –v- The State (2011) FJHC 373: HAA 014 of 2011 and Tomasi Turuturuvesi –v- State (2002) AAA 86/02s according to these cases the tariff is between 18 months and 3 years imprisonment.
11. Tariff for Theft was discussed in Niudamu -v- The State (2011) FJHC 661; HAA 028 of 2011 (20th October 2011) the tariff set was 2-9 months. In Chand V State (2007) FJHC 65 HAA 30 of 2007 Mataitoga J affirming the tariff of Larceny is with range of 2 to 3 years.
12. Considering the relevant sections in the Crimes Decree and the tariff, the sentences commenced as follows:
13. In HAC 01/2012 both incidents happened in the same Course of transaction sentence for aggravated Burglary and Theft will be implemented concurrently.
14. In HAC 02/2012 both incidents happens in the same Course of transaction sentence for aggravated Burglary and Theft will be implemented concurrently.
15. Considering the aggravating factors:
Considering the above aggravating factors I increase your sentence by 8 months. Now your sentence is as follows:
16. Considering the Mitigating circumstances of the 1st Accused Navitalai Dela:
Considering all mitigation circumstances I reduce your sentence by 6 months.
In HAC 01/2012 your sentence will be 2 years and 2 months imprisonment.
In HAC 02/2012 your sentence will be 1 year and 2 months imprisonment.
a. you are a first offender
b. you pleaded guilty at the first given opportunity
c. you are remorseful
d. you promise that you will not be involved in any unlawful activities in the future;
e. you are willing to reimburse the loss to the complainant
Considering all mitigating circumstances I reduce your sentence by 14 months.
In HAC 01/2012 your sentence will be 18 months imprisonment.
In HAC 02/2012 your sentence will be 6 months imprisonment.
18. Considering the mitigating circumstances of the 3rd Accused Ratu
Viliame Vakatalesau:
Considering all you mitigating circumstances I reduce 18 months from your sentence.
In HAC 01/2012 your sentence will be 14 months imprisonment.
In HAC 02/2012 your sentence will be 2 months imprisonment.
19. Now I consider Section 4(1) of the Sentencing guidelines decree. The only purposes for which sentencing may be imposed by a court are –
20. I further consider Section 4 (2) of the Sentencing guidelines decree. In sentencing offenders a court must have regarded to –
(a) the maximum penalty prescribed for the offence;
(b) current sentencing practice and the terms of any applicable guideline judgment;
(c) the nature and gravity of the particular offence;
(d) the offender's culpability and degree of responsibility for the offence;
(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;
(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;
(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;
(i) the offender's previous character;
(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and
(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.
21. Considering the nature of the offence and all circumstances I find the sentence imposed on the 1st Accused Navitalai Dela cannot be suspended. But the sentence imposed on the 2nd Accused and 3rd Accused Persons can be considered under section 26(1) of the Sentencing and Penalties Decree.
22. Considering Section 26 (1) of the Sentencing and Penalties Decree the section states as follows:
"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.
23. Both of you are seeking mercy of the Court and request another chance of life. In other words both of you are urging the Court to impose a non custodial sentence.
24. Both of you committed a serious crime but considering all circumstances you deserve a second chance in your life, therefore I act under Section 26(1) and suspend your sentence for a period of 3 years.
25. The sentence imposed on the 1st Accused Navitalai Dela is not suspended since the two sentences are imposed in two separate cases. Both sentences will be implemented consecutively.
26. Sentence imposed on the 2nd and 3rd Accused persons is suspended to a period of 3 years. Nature and consequences of the suspended sentence are explained to them.
27. Considering the nature of the offence I inclined to act under Section 31(1) of the Sentencing and Penalties Decree. Section 31(1) of the Sentencing and Penalties Decree states as follows:
"If a person is found guilty of an offence the court may, subject to any specific provision relating to the offence, fine the offender in addition to or instead of any other sentence to which the offender may be liable "
28. After carefully considering all factors especially the 2nd and 3rd Accused persons are willing to reimburse the loss of the virtual complainant. I impose fine in the following manner:
HAC 01/2012- $1000.00 each in default 5 months
HAC 02/2012- $500 each in default 2 ½ years
29. Considering section 34 of the said Decree the 2nd and 3rd Accused persons are given 3 months to pay the fine in 3 installments. 1st installment will be on the 18/05/2012, 2nd installment 21/06/2012 and 3rd installment 19/07/2012.
30. When the fine is paid the virtual complainant can claim the paid amount.
31. Summary:
1st Accused – Navitalai Dela
In HAC 01/2012, 2 years and 2 months imprisonment and you will not be illegible for parole before 18 months. In HAC 02/2012, 2 years imprisonment and you will not be eligible for parole for 16 months. Both sentences will be implemented consecutively.
(Minimum period you have to serve is 34 months for both offences)
2nd Accused - Peni Yalibula
In HAC 01/2012, 18 months imprisonment and the said is suspended for 3 years. In addition, a fine of $1000.00 in default 5 months imprisonment. In HAC 02/2012, 6 months imprisonment and the same is suspended for 3 years. In addition a fine of $500.00 in default 2 ½ months imprisonment.
3rd Accused – Ratu Viliame Vakatalesau
In HAC 01/2012, 12 months imprisonment and is suspended for 3 years. In addition a fine of $1000.00 in default 5 months imprisonment. In HAC 02/12, 2 months imprisonment and the same is suspended for 3 years. In addition to a fine of $500.00 in default 2 ½ months imprisonment.
S. Thurairaja
Judge
At Lautoka
4th May 2012
Solicitors : The Office of the Director Public Prosecution for State
Accused all in Person
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URL: http://www.paclii.org/fj/cases/FJHC/2012/1097.html