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State v Lesumailodoni - Sentence [2014] FJHC 462; HAC094.2013S (27 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 094 OF 2013S

STATE

vs

JOSEVATA LESUMAILODONI
APIMELEKI WAQANACEVA
VILIAME QATIVI

Counsels : Mr. T. Qalinauci for State
Mr. M. Fesaitu for Accused No. 1
Mr. E. Koroi for Accused No. 2
Accused No. 3 in Person

Hearings : 12, 13, 16 and 23 to 25 June, 2014
Summing Up : 26 June, 2014
Judgment : 26 June, 2014
Sentence : 27 June, 2014

SENTENCE

1. On 30 September 2013, all the accuseds, in the presence of their counsel, appeared on the following information:
   

FIRST COUNT

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and VILIAME QATIVI between the 29th day of January 2013 and the 31st day January 2013 at Waidroka, Navua, in the Central Division, entered the dwelling house of George Henius as trespassers with intent to commit theft of property therein.

SECOND COUNT

Statement of Offence

THEFT: Contrary to section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and VILIAME QATIVI between the 29th day of January 2013 and the 31st day January 2013 at Waidroka, Navua, in the Central Division, dishonestly appropriated a Tohatsu Outboard engine valued at $3,000, and a bolt cutter, all the property of George Henius, with the intention to deprive George Henius of this property.

THIRD COUNT

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and APIMELEKI WAQANACEVA and VILIAME QATIVI, between the 30th of January 2013 and the 31st day of January 2013, at Waidroka, Navua, in the Central Division, entered the building of Toby Buchin as trespassers with intent to commit theft of property therein.

FOURTH COUNT

Statement of Offence

THEFT: Contrary to section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI, APIMELEKI WAQANACEVA and VILIAME QATIVI, between the 30th of January 2013 and the 31st of January 2013, at Waidroka, Navua, in the Central Division, dishonestly appropriated a 40 HP Yamaha Outboard engine valued at $11,000, a chainsaw valued at $1,500, a generator valued at $4,500, 5 x fishing rods valued at $2,000, an electric saw valued at $200 and 2 x electric drills valued at $400, all to the total value of $17,300 and all the property of Toby Buchin, with the intention to deprive the aforementioned Toby Buchin of this property.

FIFTH COUNT

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and APIMELEKI WAQANACEVA, with another, on the 8th day of February 2013 at Waidroka, Navua, in the Central Division, entered the vacant dwelling house of Joe as trespassers with intent to commit theft of property therein.

SIXTH COUNT

Statement of Offence

THEFT: Contrary to section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and APIMELEKI WAQANACEVA, with another, on the 8th day of February 2013 at Waidroka, Navua, in the Central Division, dishonestly appropriated a blue Yamaha generator valued at $4,500, the property of Joe, with the intention to deprive the aforementioned Joe of this property.

2. On 13 June 2014, in the presence of their counsels, the information was read and explained to Accused No. 1 and 2. Both accuseds said, they understood the same, and Accused No. 1 pleaded guilty to count No. 1, 2, 4, 5 and 6. He pleaded not guilty to count no. 3. Accused No. 2 pleaded not guilty to count no. 3, but guilty to count no. 4, 5 and 6.
   
3. On 16 June 2014, the prosecution read the summary of facts, on the counts Accused No. 1 and 2 had pleaded guilty to. On count no. 1, the facts said, Accused No. 1 and another, between 29 and 31 January 2013, went to the complainant's dwelling house, entered the same as trespassers, with intent to commit theft. On count no. 2, the facts said, Accused No. 1 and another, after entering the above complainant's house, stole his outboard engine and a bolt cutter. On count no. 4, the facts said, both Accused No. 1 and 2, between 30 and 31 January 2013, stole another complainant's properties, itemized in count no. 4, worth a total of $17,300. On count no. 5, the facts said, Accused No. 1 and 2, on 8 February 2013, entered another complainant's house as trespassers, with intent to commit theft. On count no. 6, the facts said, Accused No. 1 and 2, after entering the above complainant's house, stole his Yamaha generator, valued at $4,500.
   
4. The court checked with counsels to see whether or not Accused No. 1 and 2 had admitted the element of the offences in count no. 1, 2, 4, 5 and 6. Through their counsels, Accused No. 1 and 2 admitted the particulars of the offences in counts no. 1, 2, 4, 5 and 6. They also admitted the prosecution's summary of facts. The court, been satisfied that, both Accused No. 1 and 2 had admitted the facts and the elements of the offences in counts no. 1, 2, 4, 5 and 6, found them guilty as charged on those counts, and convicted them accordingly.
   
5. As far as Accused No. 3 was concerned, he was previously granted a legal aid counsel, but sacked the counsel. He waived his right to counsel, and represented himself. The information was read to him on 23 June 2014. He said, he understood the same and pleaded not guilty to count no. 1, 2, 3 and 4. Because Accused No. 1 and 2 also previously pleaded not guilty to count no. 3, the three went to trial from 23 to 26 June 2014, on the counts they pleaded not guilty to.
   
6. In a judgment delivered yesterday, all three accuseds were found guilty as charged as follows; Accused No. 1 and 2 were found guilty of count no. 3, and convicted accordingly. Accused No. 3 was found guilty and convicted on count no. 1, 2, 3 and 4. The facts briefly were as follows. The three accuseds are brothers. At the material times, they hired a private car from Nadi. Accused No. 3 resides in Nadi. They travelled from Nadi to Waidroka in Navua, and trespassed into three complainant's buildings, with intent to commit theft. After entering the building, as a group, they stole the three complainant's properties, worth more than $24,800. They took the properties to Nadi, and sold them to various people.
   
7. On 26 June 2014, the accuseds presented their plea in mitigation. Accused No. 1 and 2's counsels presented helpful written plea in mitigation, and sentence submissions. The State also presented a written submission on sentence. I note that both Accused No. 1 and 2 are first offenders. Accused No. 3 had 3 pages of previous convictions, but for the purpose of sentence, I can only have regard to his 5 previous conviction in the last 10 years. I have carefully read and considered all the papers submitted by the parties.
   
8. As I have said in State v Josese Caginaliwalala & Others, Criminal Case No. HAC 293 of 2011S, High Court, Suva and State v Peni Vulisoko & Another, Criminal Case No. HAC 118 of 2013S, High Court, Suva:
   

"..."Aggravated burglary" carried a maximum sentence of 17 years imprisonment (section 313 (1) of the Crimes Decree 2009). In the repealed Penal Code, Chapter 17, "burglary" carried a maximum sentence of life imprisonment (section 299 of Penal Code). In Viliame Gukisuva v The State, Criminal Appeal No. HAA 117 of 2007, High Court, Suva, Her Ladyship Madam Justice N. Shameem, held that the tariff for burglary was a sentence between 2 to 3 years imprisonment.

"Theft" carried a maximum sentence of 10 years imprisonment [section 291 (1) of Crimes Decree 2009]. In the repealed Penal Code, Chapter 17, "simple theft" carried a maximum penalty of 5 years imprisonment; however, if the person had been previously convicted of a felony, the maximum penalty was 10 years imprisonment (section 259 (1) and 262 of the Penal Code). In Navitalai Seru vs The State, Criminal Appeal No. HAA 84 and 85 of 2002S, Her Ladyship Madam Justice Shameem said as follows:

"...the maximum sentence for simple larceny is (on a second conviction) 10 years imprisonment. The tariff, on a first conviction under section 259 and 262 of the Penal Code, is two months to nine months imprisonment (Paula Bale vs The State, Criminal Appeal No. 27 of 1998, Pauliasi Nadali vs The State, Criminal Appeal No. 29 of 1998, Iowane Wainiqolo vs The State, Criminal Appeal No. 44, 45 of 1998, Ronald Vikash Singh Criminal Appeal No. HAA 035 of 2002). It is logical, that on a second conviction the tariff is doubled to four months to 18 months imprisonment, because the statutory maximum increases from five to ten years. I accept this as a tariff in cases of second convictions for larceny..."

In State vs Jona Saukilagi, Criminal Case No. HAC 21 of 2004S, Her Ladyship further said as follows:

"...Stealing from the bank is a serious matter. The tariff for simple larceny on first conviction is 2 – 9 months (Ronald Vikash vs State, HAA 035 of 2002) and on second conviction a sentence in excess of 9 months. In cases of the larceny of large amounts of money sentences of 1 ½ years imprisonment (Isoa Codrokadroka vs State Criminal Appeal No. 67 of 2002) and 3 years imprisonment have been upheld by the High Court (Sevanaia Via Koroi vs The State, Criminal Appeal No. HAA 031 of 2001S). Much depends on the value of the money stolen, and the nature of the relationship between victim and defendant. The method of stealing is also relevant..."

One could see from the above authorities that the accepted tariff for "theft" is a sentence between 2 months to 3 years, depending on the circumstances and facts of the case. However, the actual sentence in the case will depend on the aggravating and mitigating factors..."

9. The mitigating factors in this case, were as follows:
   
   • (A) Josevata Lesumailodoni:
   • (i) At the age of 33 years, these are your first offences;
   • (ii) You are married, with 2 young children aged 2 and 5 years old;
   • (iii) Although you pleaded guilty to count no. 1, 2, 4, 5 and 6 1 year 3 months 12 days after the first call, you nevertheless saved some court time;
   • (iv) You had been remanded in custody since 1 March 2013, that is, 1 year 3 months 26 days ago;
   • (v) You are remorseful.
     
   • (B) Apimeleki Waqanaceva:
   • (i) At the age of 32 years, this is your first offences;
   • (ii) You are married, with an 8 year old son;
   • (iii) Although you pleaded guilty to count no. 4, 5 and 6 1 year 3 months 12 days after the first call, you nevertheless saved some court time;
   • (iv) You had been remanded in custody for 1 year 3 months 26 days;
   • (v) You are remorseful.
     
   • (C) Viliame Qativi:
   • (i) You are 39 years old, married with 3 young children aged between 5 to 10 years old;
   • (ii) You have been remanded in custody for 1 year 3 months 26 days.
     
10. Because you acted as a group in offending against the three complainants, I will treat you as one, when considering the aggravating factors. The aggravating factors, were as follows:
    
    • (i) Your offending was well planned and executed. Accused No. 1, you provided the intelligence ie. you knew the houses in Waidroka were vacant, at the time. You then went and got Accused No. 2 and No. 3's assistance. Accused No. 3, as the elder, took over the scheme, and made the same yours to lead. You organized the transport. You proceeded to the crime scene in the dark. Then you broke into the complainant's houses etc and stole their properties. Then you took the stolen items to Nadi to sell. You have deliberately choosen to violate other people's right. You have chosen to live outside the law. You must not complain when your liberties are taken away, in order to teach you, to respect other people's rights.
      
    • (ii) By committing these offences, you have showed utter disregard to the complainant's property rights. People work hard to buy properties, and have a comfortable life. However, you choose to act as parasites and prey on the fruits of their sweat and toil. A custodial sentence is required to persuade you not to continue as a parasite in our society, and to urge you to take on some honest work.
      
11. I will start with the "aggravated burglary" charge in count no. 3, because this involved the whole lot of you. I start with a sentence of 3 years imprisonment. I add 2 years for the aggravating factors, making a total sentence of 5 years imprisonment, for each of you.
    
12. For the mitigating factors, I make the following deduction. Each of you had spent 1 year 3 months 26 days in custody while on remand. I will make that 1 year 4 months. 1 year 4 months is deducted from the 5 years, leaving a balance of 3 years 8 months. For Accused No. 1 and 2, been first offenders, I deduct 1 year from the 3 years 8 months, leaving a balance of 2 years 8 months. Because Accused No. 1 and 2 pleaded guilty on majority of the charges, and other mitigating factors, I deduct 8 months from their 2 years 8 months sentence, leaving a balance of 2 years imprisonment.
    
13. I repeat the above process and sentence on all the other counts.
    
14. In summary, your sentences are as follows:
    
    • (i) Accused No. 1 : Count No. 1 : 2 years imprisonment

Count No. 2 : 2 years imprisonment

Count No. 3 : 2 years imprisonment

Count No. 4 : 2 years imprisonment

Count No. 5 : 2 years imprisonment

Count No. 6 : 2 years imprisonment.

(ii) Accused No. 2 : Count No. 3 : 2 years imprisonment

Count No. 4 : 2 years imprisonment

Count No. 5 : 2 years imprisonment

Count No. 6 : 2 years imprisonment.

(iii) Accused No. 3 : Count No. 1 : 3 years 8 months imprisonment

Count No. 2 : 3 years 8 months imprisonment

Count No. 3 : 3 years 8 months imprisonment

Count No. 4 : 3 years 8 months imprisonment.

15. Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other, that is, for Accused No. 1 and 2, the total final sentence is 2 years imprisonment each. For Accused No. 3, the total final sentence is 3 years 8 months imprisonment.
    
16. Josevata Lesumailodoni, Apimeleki Waqanaceva and Viliame Qativi, for offending against the three complainants in this case, I sentence you as follows:
    
    • (i) Accused No. 1 and 2: 2 years imprisonment each, with a non-parole period of 18 months each;
      
    • (ii) Accused No. 3: 3 years 8 months imprisonment, with a non-parole period of 3 years imprisonment.
      

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused No. 1 : Legal Aid Commission, Suva.
Solicitor for Accused No. 2 : E. Koroi, Barrister and Solicitor, Suva.
Solicitor for Accused No. 3 : In Person