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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 356/ 2011
BETWEEN:
STATE
AND:
ISSAC MATHEWS JAMES
COUNSELS: Mr.L.Fotofili for the State
Accused in person
Date of Hearing : 1st March, 2012.
Date of Sentence : 20th March, 2012.
SENTENCE
[1] The Director of Public Prosecution had preferred the following charges against the accused above named.
FIRST COUNT
Statement of Offence
AGGRAVATED BURGLARY: Contrary to Section 313(1) (a) of the Crimes Decree No: 44 of 2009.
Particulars of Offence
ISSAC MATHEWS JAMES together with another on the 4th day of November 2011 at Lami in the Central Division, entered into lot 26 Nakula Street Lami as a trespasser with intent to commit theft if a particular item of property in the building.
SECOND COUNT
Statement of Offence
THEFT: Contrary to section 291(1) of the Crimes Degree No: 44 of 2009
Particulars of Offence
ISSAC MATHEWS JAMES together with another on the 4th day of November 2011 at Lami in the Central Division, dishonestly appropriated one DVD player valued at $109 and one pair of "New Balance" sneakers valued at $239 all of the total value of $348 belonging to GRACE FAITH, with the intention of permanently depriving of the said GRACE FAITH of the said property.
THIRD COUNT
Statement of Offence
THEFT: Contrary to section 291(1) of the Crimes Degree No: 44 of 2009
Particulars of Offence
ISSAC MATHEWS JAMES together with another on the 4th day of November 2011 at Lami in the Central Division, dishonestly appropriated one External Hard Drive valued at $180, one Alcatel Mobile Phone valued at $100, one IPOD valued at $50, one black bag valued at $89 and 1 ¾ trouser valued at $35 all to the total value of $454 belonging to BILL SAVU, with the intention of permanently depriving BILL SAVU of the said property.
2. When the Plea was taken on the 31st day January, 2012 the accused had pleaded guilty to all the charges against him. Accepting the Plea to be unequivocal this court found him guilty and convicted him under Sections 313(1) (a) and 291(1) of Crimes Degree No: 44 of 2009.
3. State Counsel submitted following summary of facts of which the accused admitted.
On the 04th of November 2011, Issac Mathews James (Accused) had gone to lot 26 Nakula Street, Lami to see his grandmother. He had gone with a friend called Navitiali. He did not meet his grandmother and when he came down the steps had seen his friend Navitalai entering in to his aunties flat. He admitted that they brought the DVD player and canvas from inside the flat. They then went upstairs to his Uncle Bill Savu's room and he entered through the missing window. Both of them entered the house and stole items mentioned in the charge. His friend Navitalai entered Grace Faith's room and gave him a DVD player and canvas. He admitted stealing Bill Savu's external hard drive, mobile phone, IPOD, Black Coral Bag and ¾ trousers.
The accused was later arrested and caution interviewed. The accused admitted to the offence of Aggravated Robbery and Theft in Q & A 10-25 of his interview under caution.
TARIFF
04.
05. The Tariff for both aggravated robbery and theft was discussed in the recent case of State v Jese Driu High Court Criminal Case No: HAC 143/2010 where Hon. Justice Nawana stated the following remarks in paragraphs 3-5 of his sentencing remark.
3. The tariff for the offence of burglary as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (State Vs Mikaele Buliruarua) [2010] FJHC 384;(Tomasi Vs State) [2002] HAA 086/02.The tariff set out for the offences involving burglary and larceny under the Penal Code was 1-4 years of imprisonment. (Cavuilagi Vs State [2004] FJHC 92)
4. In Buliruarua"s case (supra) the tariff for the offence of Burglary under the penal Code, was made applicable in relation to the offence of Burglary under the Degree.
5. I would accordingly adopt the same tariff for the offence of Burglary and of Theft under the Degree in this case.
6. The accused is 18 years of age. Currently he is serving a prison term of two years.
7. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.
8. Section 15(3) of the Sentencing Decree provides that:
"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".
9. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:
(a) To punish offenders to an extent and a manner, which is just in all the circumstances;
(b) To protect the community from offenders;
(c) To deter offenders or other persons from committing offences of the same or similar nature;
(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
(e) To signify that the court and the community denounce the commission of such offences; or
(f) Any combination of these purposes.
10. Section 4(2) of the Decree further provides that in sentencing offenders, aCourt must have regarded to:
(a) The maximum penalty prescribed for the offence;
(b) Current sentencing practice and the terms of any applicable gridline Judgments;
(c) The nature and gravity of the particular offence;
(d) The defender's culpability and degree of responsibly 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 that a court may consider under this Decree;
(i) The offender's previous character;
(j) The presence of any aggravating pre 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.
11. Now I consider the aggravating factors:
(a) Burglary committed with another,
(b) Removing the window blades of the house,
(c) Ransacking the bedroom of the complainant.
(a) The accused pleaded guilty before the commencement of the trial.
(b) Accused was 17 years old young person at the time of committing the offence..
(d) He co-operated with the Police and helped to recover stolen items.
(e) He is remorseful.
14. I order all the sentences to run concurrently.
15. 30 days to appeal.
P.Kumararatnam
JUDGE
At Suva
20th March, 2012
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URL: http://www.paclii.org/fj/cases/FJHC/2012/994.html