IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC   245 OF 2018

STATE

-v-

PENIONI  NAKAVULEVU

Counsel: 			Mr. S. Komaibaba with Mr. U. Prasad for Prosecution
Mr. A.K. Singh for Defence

Date of Judgment	:	27 September 2019
Date of Sentence	:	30 September 2019

 SENTENCE 

1.		Penioni Nakavulevu, you were charged on the following information: 

						COUNT ONE

Statement of Offence

	BURGLARY:	Contrary to Section 312(1) of the Crimes Act of 2009.

Particulars of Offence

PENIONI NAKAVULEVU on the 11th day of June 2018 at Naselai Nausori, in the Eastern Division, entered into SINGHS SUPERMARKET as a trespasser with intention to commit theft therein.

COUNT TWO

Statement of Offence

	THEFT:  Contrary to Section 291 (1) of the Crimes Act of 2009.

Particulars of Offence

PENIONI NAKAVULEVU on the 11th day of June 2018 at Naselai Nausori, in the Eastern Division dishonestly appropriated 9 cartons of BH 10 cigarettes valued at $57,290.40, 2 carton of BH 20 cigarettes valued at $12,257.05, cash of $22,000.00, cheques amounting to a total of $9,000, 1 carton of Fiji Bitter valued at $68.40, 22 bottles of Fiji Gold valued at $193.80, 1 can rum and cola valued at $3.10, 13 cans of Joskes valued at $58.50, 2 bottles of tribe valued at $6.20, 1 can of vodka valued at $4.99, 2 x 750ml Bounty Rum valued at $133.90, 3 x 375ml of Regal Gin valued at $111.00, 2 x 375ml Delux Whisky valued at $74.00, 1 Mosuto wine valued at $14.95, 1 BH 10 valued at $6.90, 3 x BH 20 valued at $37.20, 1 Rothmans 10 valued at $6.70, 2 taki glass valued at $1.00, 7 x Nivea Cream valued at $83.93, 8 Brut Body Spray valued at $63.92, 12 Gillet shave valued at $299.88, 6 x Revlon hair colour valued at $75.54, all to the total value of $101,243.96, the property of SINGHS SUPERMARKET. You pleaded not guilty to the above charge. 

2. 	The assessors unanimously found you guilty as charged. In my judgment, I accepted the opinion of assessors and found you guilty on each count. You are convicted accordingly.

3.	The Prosecution at the trial proved that on 11 June 2018, during night time, you entered the Singh’s supermarket at Naselai, Nausori, belonging to the complainant. The supermarket was broken into and the property listed in the agreed facts and charge was stolen. To gain entry, you had broken the padlock and lifted the roller shutter of the back entrance. You had left your fingerprint at the base of the roller shutter helping the police to implicate you in the offences. 

4.	The maximum penalty prescribed for Burglary under the Crimes Act is 13 years’ imprisonment. Despite the drastic reduction of the maximum penalty for this offence under the Crimes Act, the courts continued to apply the tariff band of 18 months to 3 years’ imprisonment which was applied to the corresponding offence of Burglary under the Penal Code (now repealed). In State v. Taito Seninawanawa HAC 138 0f 2012 (22 April 2015) Madigan J sets out the tariff for Burglary between 18 months and 3 years with three years being the standard sentence for burglary of domestic premises. This tariff has been widely applied in Fiji [Tomasi Turuturuvesi – HAA 06/02S]. However, given the current surge in burglaries in Fiji, some judges have taken the view that this tariff which is also applicable in Aggravated Burglary cases is manifestly lenient and does not send a clear message to the society in terms of deterrence and denunciation. Therefore, in appropriate cases, it is not obnoxious to the sentencing principles for the courts to adjust the tariff, of course after recording reasons, to meet the broader demands of justice. 

5.	Having said that, I now proceed to craft your sentence. You have been convicted on each count based on the same facts arising out of a single transaction. Section 17 of the Sentencing and Penalties Act permits me to impose an aggregate sentence for both counts. Therefore, I would impose an aggregate sentence in this case. 

6.		In selecting the starting point, I bear in mind the objective seriousness of your offending on the basis of the degree of culpability and the loss caused to the complainant. You have broken into a supermarket, an important service provider, during night time. A large amount of property, all to the total value of $101,243.96, had been stolen. Only 15 gross of cigarettes have been recovered. Having considered all these factors, I have decided to start your sentence with an imprisonment term of 24 months. 

7.		The circumstances of the offending suggest that the offences have been committed with a degree of premeditation. Burglaries and thefts are most prevalent in Fiji. These factors aggravate your offending.

8.		In mitigation, I have considered the comprehensive mitigation submission of your Counsel. You are 32 years of age and a father of two children mothered by your de facto partner. You have two previous convictions and one of which has been recorded within the past 10 years. The previous conviction within the operational period is of similar nature and has been recorded on 23 December 2013. Speculating on the case number, your counsel has submitted that you had committed the offence way back in 2009. The claim of the counsel is not substantiated. However, I have completely disregarded the State’s claim that you have 7 pending cases in the magistracy because you are presumed innocent until proven guilty. In view of the previous conviction, I am not inclined to give any discount on account of previous good character. Your conduct after the offence and during trial do not permit me to accept your counsel’s claim that you are remorseful of your actions.  

9.		For the aggravating factors, I increase your sentence by 12 months to reach 36 months and for mitigating features, I allow a discount of 6 months to arrive at a sentence of 30 months’ imprisonment. 

10. 	You were remand in custody for approximately one year and 4 months (16 months). The time spent in remand is discounted separately. 

11.	The final sentence I impose on you is 14 months’ imprisonment.

12.	The courts have a duty to denounce and deter this kind of anti-social behaviour. These offences are most prevalent in Fiji. Innocent people live in fear that their hard earned money and property will be stolen by unscrupulous elements like you. These type of offences must be condemned and the offenders must be severely punished to deter them and others by sending a clear message. The primary purpose of this punishment is deterrence. 

13.	You are not a suitable candidate to be considered for a suspended sentence because of the previous conviction of similar nature. 

14.	Penioni Nakavulevu, you are sentenced to 14 months’ imprisonment with immediate effect.

		

Aruna Aluthge 
		      Judge

At Suva
30 September 2019

Counsel: 		Office of the Director of Public Prosecution for Prosecution.
			A.K. Singh Lawyers for Defence