|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 127 of 2020
STATE
V
1. SAMISONI KOROITAWAMUDU
2. JONACANI JORDAN ROBAROBALEVU
Counsel : Mr. Eoghn Samisoni with Mr. Shahil Shiraz for the State
Ms. Lavinia David as Duty Solicitor for the 1st and 2nd Accused
Sentence Hearing : 19 November 2020
Sentence : 8 December 2020
SENTENCE
[1] Samisoni Koroitawamudu and Jonacani Jordan Robarobalevu, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged with the following offences:
[COUNT 1]
Statement of Offence
AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Act 2009.
Particulars of Offence
SAMISONI KOROITAWAMUDU with others, on the 8th day of April 2020, at Lami, in the Central Division, in the company of each other, entered as trespassers into RB PATEL SUPERMARKET HARBOUR POINT, with the intent to commit theft.
[COUNT 2]
Statement of Offence
THEFT: Contrary to Section 291 (1) of the Crimes Act 2009.
Particulars of Offence
SAMISONI KOROITAWAMUDU with others, on the 8th day of April 2020, at Lami, in the Central Division, in the company of each other, dishonestly appropriated (stole) 1 x 750ml of Bounty White Rum, 1 x 700ml Coruba Rum, 1 x 1 litre J&B Rare Comfort Whisky; 9 x Joske Brew; 1 x gross of cigarettes and 5 x school bags the property of RB PATEL SUPERMARKET HARBOUR POINT with the intention of permanently depriving RB PATEL SUPERMARKET HARBOUR POINT of the said property.
[COUNT 3]
Statement of Offence
RECEIVING: Contrary to Section 306 (1) of the Crimes Act 2009.
Particulars of Offence
JONACANI JORDAN ROBAROBALEVU, on the 8th day of April 2020, at Lami, in the Central Division, dishonestly received 1 x packet of cigarettes and 1 x bottle of Coruba Rum, the property of R B PATEL SUPERMARKET HARBOUR POINT knowing or believing the said property to be stolen.
[2] On 30 June 2020, the DPP filed the Disclosures relevant to the case, while the Information was filed on 15 July 2020.
[3] Samisoni and Jonacani, on 30 July 2020, you were ready to take your pleas. Accordingly, Samisoni you pleaded guilty to Counts 1 and 2 in the Information, while Jonacani, you pleaded guilty to Count 3 in the Information. This Court was satisfied that you both pleaded guilty on your own free will and free from any influence. Court found that you both fully understood the nature of the charges against you and the consequences of your guilty pleas.
[4] Thereafter, the State filed the Summary of Facts. On 2 September 2020, the Summary of Facts were read out and explained to you and you both understood and agreed to the same. Accordingly, Court found your guilty pleas to be unequivocal. I found that the facts support all elements of the respective counts in the Information, and found the respective counts proved on the Summary of Facts agreed by you. Accordingly, Samisoni, I found you guilty on your own plea and convicted you of Counts 1 and 2 as charged. Jonacani, I found you guilty on your own plea and convicted you of Count 3 as charged.
[5] During these proceedings you both opted to waive your Right to Counsel. However, at the request of this Court, Ms. Lavinia David from the Legal Aid Commission appeared as Duty Solicitor on your behalf. She filed submissions in mitigation on your behalf and also represented you during the sentence hearing.
[6] Samisoni and Jonacani, I now proceed to pass sentence on the two of you.
[7] The Summary of Facts filed by the State was as follows:
“Complainants:
[PW1]: Sachin Prasad, 31 years old, Manager of RB Patel Supermarket, Harbour Point – Lami.
[PW2]: Keni Boa, Security Guard for RB Patel Supermarket, Harbour Point – Lami, Suvavou Village.
[PW3]: Reapi Rauca, 27 years old, employee of RB Patel Supermarket, Harbour Point – Lami of Navua.
[PW4]: A/Cpl 3792 Etuate, 34 years old of Lami Police Station.
Accused’s:
[A1]: Samisoni Koroitawamudu, 18 years old of Suvavou Village, Lami.
[A2]: Jonacani Jordan Robarobalevu, 19 years old of Suvavou Village, Lami.
On 8 April 2020, PW1 Sachin Prasad was called by PW2 and informed that the RB Patel Supermarket at Harbour Point in Lami had been broken into. PW1 called the Police and arrived at the scene where the security guard was waiting.
PW1 determined that the following items had been stolen after completing a stock take the next day (9/4/20):
All to the total value of $2,072.48.
PW1 also discovered that two louvre blades and an iron bar had been removed to gain entry into the supermarket.
According to PW2 Keni Boa he was informed at around 7.20 p.m. on 8 April 2020 that the supermarket may have been broken into. PW2 went to the supermarket to investigate and on his way there, he called PW1. PW2 was supposed to have started his shift at 8.30 p.m. that night. PW2 stated that the suspects must have climbed onto a table adjacent to a window and gained entry through there. According to PW2, two louvre blades and two rods had been removed.
PW3 Reapi Rauca was in charge of the liquor department at the supermarket and assisted PW1 in the stocktake process after the burglary. She went on to state that the Police had shown her 1 x bottle of Coruba Rum which she identified as one of the stolen items from the supermarket. [A copy of the RB Patel Stock take results is annexed as PE1].
PW4 A/Cpl 3792 Etuate said that he was alerted to the break in at the supermarket at around 10.00 pm when he was returning from Montfort Boys Town. On 10 April 2020, PW4 managed to arrest A1 (alias Parapa) who admitted to him that he had broken into the supermarket with the help of others. PW4 had arrested A1 and cautioned him before he admitted to the offence. A1 admitted that he and another had removed the louvre blades and rods and entered into the supermarket. A1 and another had stolen assorted alcohol and BH cigarettes whilst two other accomplices stood watch outside. After investigations were completed, the accused persons were charged with Aggravated Burglary and Theft.
Both A1 and A2 made full admissions in their respective Records of Interview as follows:
(A1) Samisoni Koroitawamudu (18 years old): admitted to being present at RB Patel Supermarket at Harbour Point – Lami to charge his mobile phone (Q & A 10 & 11). From Q & A 15 to 32 A1 further admitted to planning to go to RB Patel Supermarket and in the event that the lights get switched off, then he and another person would break into the supermarket. A1 and another entered the supermarket while three other accomplices stood watch outside (Q & A 31). A1 admitted to climbing onto a table before removing the iron rods and louvre blades and entering through a window. A1 admitted to taking 1 x 26oz rum, 1 bottle of red label and 1 x bottle of Jim Beam. At Q & A 32, A1 and his accomplices then ran towards the village after committing this offence. At Q & A 33 A1 denied stealing any school bags. A1 admitted to taking the hot stuff back to one Deve’s house (Q & A 35). A1 participated in a scene reconstruction from Q & A 42-47.
[The Record of Interview of A1 is annexed as PE 2 and the Photographic Booklet of the Scene Reconstruction is annexed as PE 3].
(A2) Jonacani Robarobalevu (19 years old): A2 denied taking part in the break-in of the supermarket (Q & A 53). However, at Q & A 39 & 40 he admitted to being given 1 x packet of cigarettes and 1 x bottle of Coruba liquor by A1 Jona. A2 further admitted that when he received those items he knew straight away that they were stolen goods. A2 stated that he and the rest of the boys including A1 went to a friend’s place to drink the stolen alcohol (Q & A 45 & 46).
[The Record of Interview is annexed as PE 4].
On 30 July 2020, A1 and A2 pleaded guilty to the offences of their own free will. A1 informed the Court that he only stole “1 x Coruba Rum, 1 x Red Label and 1 x Jim Beam”.
[8] Samisoni and Jonacani, you have admitted to the above Summary of Facts and taken full responsibility for your actions.
[9] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:
4. — (1) The only purposes for which sentencing may be imposed by a court are —
(a) to punish offenders to an extent and in 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] I have duly considered the above factors in determining the sentences to be imposed on you.
[11] Samisoni, I will first consider the sentences to be imposed against you in respect of Counts 1 (Aggravated Burglary) and 2 (Theft).
[12] In terms of Section 313 (1) of the Crimes Act No. 44 of 2009 (Crimes Act), “A person commits an indictable offence (of Aggravated Burglary) if he or she-
(a) Commits a burglary in company with one or more other persons; or
(b) ...........”
The offence of ‘Burglary’ is defined at Section 312 (1) of the Crimes Act as follows: “A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building”.
The offence of Aggravated Burglary in terms of Section 313 (1) of the Crimes Act carries a maximum penalty of 17 years imprisonment.
[13] The tariff for the offence of Aggravated Burglary is between 18 months to 3 years imprisonment. This tariff has been adopted in several decided cases: State v. Mikaele Buliruarua [2010] FJHC 384; HAC 157.2010 (6 September 2010); State v. Nasara [2011] FJHC 677; HAC 143.2010 (31 October 2011); State v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16 May 2013); State v. Seninawanawa [2015] FJHC 261; HAC 138.2012 (22 April 2015); State v. Seru [2015] FJHC 528; HAC 426.2012 (6 July 2015); State v. Drose [2017] FJHC 205; HAC 325.2015 (28 February 2017); and State v. Rasegadi & Another [2018] FJHC 364; HAC 101.2018 (7 May 2018).
[14] The Court of Appeal in Leqavuni v. State [2016] FJCA 31; AAU 106.2014 (26 February 2016), observed that the tariff for Aggravated Burglary is between 18 months to 3 years.
[15] This Court has been consistently following the tariff of 18 months to 3 years imprisonment for Aggravated Burglary: Vide State
v. (Venasio) Cawi & 2 others [2018] FJHC 444; HAC 155.2018 (1 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 536; HAC 92.2018 (20 June 2018); State v. Pita Tukele & 2 others [2018] FJHC 558; HAC 179.2018 (28 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 995; HAC 92.2018 (17 October 2018); State v. (Maika) Raisilisili [2018] FJHC 1190; HAC 355.2018 (13 December 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 1209; HAC 92.2018 (18 December 2018); State v. Michael Bhan [2019] FJHC 661; HAC 44.2019 (4 July 2019); State v. Etika Toka HAC 138.2019 (1 November 2019); State v. Vakacavuti HAC337.2018 (7 November 2019);
State v. Vakacavuti [2019] FJHC 1088; HAC338.2018 (7 November 2019); State v. Peniasi Ciri and Another [2020] FJHC 63; HAC14.2019 (6 February 2020); State v. Maikeli Turagakula and Another [2020] FJHC 101; HAC416.2018 (19 February 2020); State v. (Sachindra Sumeet) Lal & Another [2020] FJHC 147; HAC71.2019 (26 February 2020); State v. (Rupeni) Lilo [2020] FJHC 401; HAC225.2018 (9 June 2020); State v. (Taniela) Tabuakula [2020] FJHC 464; HAC106.2020 (23 June 2020); State v. (Eric Male) Robarobalevu [2020] FJHC 630; HAC102.2020 (6 August 2020); State v. (Usaia) Delai [2020] FJHC 631; HAC7.2020 (6 August 2020); State v Vakawaletabua [2020] FJHC 645; HAC441.2018 (11 August 2020); State v. (Sakeasi) Seru and Another [2020] FJHC 770; HAC136.2020 (18 September 2020); State v. (Kunal Edwin) Prasad [2020] FJHC 785; HAC115.2020 (23 September 2020); State v. (Emosi) Tabuasei [2020] FJHC 994; HAC131.2020 (27 November 2020); State v. LR and Others [2020] FJHC 993; HAC133.2020 (27 November 2020); and State v. Lal and Another [2020] FJHC 1024; HAC337.2019 (3 December 2020).
[16] In terms of Section 291 (1) of the Crimes Act “A person commits a summary offence if he or she dishonestly appropriates
property belonging to another with the intention of permanently depriving the other of the property”. The offence of Theft
in terms of Section 291 (1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[17] In Ratusili v. State [2012] FJHC 1249; HAA011.2012 (1 August 2012); His Lordship Justice Madigan proposed the following tariff for the offence of Theft:
“(i) For a first offence of simple theft the sentencing range should be between 2 and 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.”
[18] Since the theft in this case involved property of high value, and was consequent to you and your accomplices entering the commercial premises of the complainant as trespassers, this cannot be considered as theft simpliciter. Therefore, it is my opinion that the appropriate tariff in this case should be in the range of 2 months to 3 years imprisonment for the offence of Theft.
[19] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:
“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. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”
[20] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offences, Samisoni, I commence your sentence at 18 months imprisonment for the first count of Aggravated Burglary.
[21] Similarly, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offences, Samisoni, I commence your sentence at 6 months imprisonment for the second count of Theft.
[22] The aggravating factors are as follows:
(i) The frequent prevalence of these offences in our society today.
(ii) You and your accomplices trespassed into the commercial premises of the complainant (a well-known supermarket), in the early hours of the night, thereby paying scant regard to the privacy of the complainant.
(iii) I find that there was pre-planning or pre-meditation on you and your accomplices part in committing these offences.
(iv) You are now convicted of multiple offending.
[23] In mitigation you have submitted as follows:
(i) That you are a first offender as an adult person and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.
(ii) That you fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.
(iii) You have submitted that you are truly remorseful of your actions and assured Court that you will not re-offend.
(iv) That you entered a guilty plea at an early stage of these proceedings.
[24] Considering the aforementioned aggravating factors, Samisoni I increase your sentence by a further 4 years. Now your sentence for count one would be 5 years and 6 months imprisonment. Your sentence for count two would be 4 years and 6 months imprisonment.
[25] Samisoni I agree that this is your first offence as an adult. Unfortunately I cannot accept that you are a person of previous good character since a Punishment was imposed on you by the High Court, for a similar property offence, on 25 November 2019, although I agree that you were a Juvenile at the time. Therefore, I am not in a position to give you any discount in lieu of this fact.
[26] I agree that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and your undertaking not to re-offend in the future. Accordingly, considering these mitigating factors, I deduct 2 years and 6 months from your sentences. Now your sentence for count one would be 3 years imprisonment. Your sentence for count two would be 2 years imprisonment.
[27] Samisoni I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court. For your early guilty plea I grant you a further discount of 12 months for count one. Since I propose to make your sentences concurrent I do not deem it necessary to grant you any further discount for count two in lieu of this factor.
[28] In the circumstances, Samisoni your sentences are as follows:
Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-2 years imprisonment.
Count 2- Theft contrary to Section 291 (1) of the Crimes Act –2 years imprisonment.
I order that both sentences of imprisonment to run concurrently. Therefore, your final total term will be 2 years imprisonment.
[29] Jonacani you have been found guilty and convicted of one count of Receiving in contravention of Section 306 (1) of the Crimes Act (Count 3).
[30] In terms of Section 306 (1) of the Crimes Act, “A person commits a summary offence if he or she dishonestly receives stolen property, knowing or believing the property to be stolen”.
Section 306 (3) of the Crimes Act provides:
“(3) for the purposes of this section, property is stolen property if, and only if —
(a) it is original stolen property (as defined by sub-section(5)); or
(b) it is previously received property (as defined by sub-section (6)); or
(c) it is tainted property (as defined by sub-section (8)).”
The offence of Receiving in terms of Section 306 (1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[31] His Lordship Justice Temo in State v. Josaia Usumaki [2015] FJHC 259; HAC 338 of 2012S (20 April 2015); held:
"........receiving stolen property", contrary to section 306(1) of the Crimes Decree 2009, is also viewed seriously by the law makers of this country. It carries a maximum sentence of 10 years imprisonment. For a similar offence in the repealed Penal Code, I said the following in State v. Josua Raitamata, Criminal Case No. HAC 012A of 2010S: "...The offence of "receiving stolen property", is also a serious offence and carries a maximum penalty of 14 years imprisonment. (Section 313(1) (a) of the Penal Code). The tariff for this offence appears to be a sentence between 12 months to 4 years imprisonment: Tukai Taura v. State [2003] HAA 103 and 104 of 2002; Ilaitia Tuwere Turaga v. The State [2002] HAA 082/02S; Jesoni Tabakau v. State [2003] HAA 19/03S and R v Webbe [2002] 1 Cr. App. R. 22. The sentence will depend on the aggravating and mitigating factors..." The above tariff is also applicable to "receiving stolen property" under section 306 (1) of the Crimes Decree 2009.
[32] However, in State v. Qarasaumaki [2011] FJHC 283; HAC 96 of 2009S (23 May 2011); His Lordship Justice Temo held:
“For "receiving stolen property", the maximum sentence is 14 years imprisonment (under the Penal Code). However, case precedent seemed to put the tariff between a sentence of 1 year to 3 years imprisonment. If the value of the properties received is low, the sentence is often lower. It is otherwise, if the value of properties received is high: see Jesoni Tabakau v The State, Criminal Appeal No. HAA 0019 of 2003S, High Court, Suva; Ilaitia Tuwere Turaga v The State, Criminal Appeal No. HAA 082 of 2002S, High Court, Suva; Timaleti Utovou v The Stateminal Appeal Neal No. HAA 0010 of 2002S, High Court, Suva. The actual sentence on the above offences will depend on the mitigating and aggravating factors”>
[33] In State v. Rigamoto and Another ther [2018] FJHC 513; HAC158.2018 (18 June 2018); this Court followed the tariff of 1 to 3 years imprisonment for the offence of Receiving.
[34] Considering all the above, I adopt the tariff for the offence of Receiving under the Crimes Act, as between 1 to 3 years imprisonment.
[35] The only aggravating factor this Court could find is the frequent prevalence of these offences in our society today.
[36] In mitigation you have submitted as follows:
(i) That you are a first offender.
(ii) That you fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.
(iii) You have submitted that you are truly remorseful of your actions and assured Court that you will not re-offend.
(iv) That you entered a guilty plea at an early stage of these proceedings.
[37] Jonacani, although it is said that you are a first offender, this is not entirely correct. You have brought to the attention of this Court that you were sentenced by the Navua Magistrate’s Court to a term of 3 months imprisonment earlier this year, for Failure to Comply with Orders. Therefore, I cannot accept that you are a person of previous good character. However, I do accept and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine.
[38] Jonacani I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court.
[39] Accordingly, Jonacani considering the objective seriousness of this offence and taking into consideration the nature and the gravity of the offence and your culpability and degree of responsibility for the offence, and also taking into consideration the sole aggravating factor and the mitigating factors, I impose on you a sentence of 1 years’ imprisonment for the third count of Receiving.
[40] Samisoni and Jonacani, the next issue for consideration is whether your sentences should be suspended.
[41] Section 26 of the Sentencing and Penalties Act provides as follows:
(1) 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.
(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—
(a) does not exceed 3 years in the case of the High Court; or
(b) does not exceed 2 years in the case of the Magistrate’s Court.
[42] Samisoni you are 18 years of age [Date of birth 31 January 2002]. At the time of offending you would have just turned 18. You are said to be engaged in farming earning approximately $150.00 per week.
[43] Samisoni it is said that you only studied up to Class 4 at Adventist Primary School. You had found school very difficult. Your parents are said to have separated in 2008, and you were thereafter brought up by your mother. Your mother is now said to be in a de-facto relationship.
[44] You have taken full responsibility for your actions. You have submitted that you committed the offences without comprehending the gravity of your actions.
[45] Samisoni you were arrested for this case on 9 April 2020 and you were granted bail by this Court on 11 May 2020. Accordingly, you had been in remand custody for this case for 1 month.
[46] Jonacani you are 20 years [Date of birth 8 October 2000]. At the time of offending you were 19 years of age. It is said that your father passed away in the year 2016. It is also stated that you are a student at the Maritime Academy.
[47] Jonacani you have taken full responsibility for your actions. You admit that there is no excuse for your actions and realise that you will have to suffer the consequences of your actions for the rest of your life.
[48] Jonacani you were arrested for this case on 9 April 2020 and you were granted bail by this Court on 17 July 2020. Accordingly, you had been in remand custody for this case for over 3 months.
[49] In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held:
“....However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”
[50] In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held:
“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”
[51] Samisoni I agree that you are a young offender. As stated earlier this is your first offence as an adult. However, this Court cannot ignore the fact that a Punishment was imposed on you by the High Court (HAC 201/2019), for a similar property offence, on 25 November 2019. When perusing the contents of the said Punishment, I find that on 18 May 2019 (when you were a Juvenile at the time of the said offending), you together with another adult person, had committed Aggravated Burglary and Theft at the same RB Patel Supermarket at Harbour Point. Therefore, it is clear that you had trespassed onto the same property namely RB Patel Supermarket at Harbour Point and committed Theft twice within a span of 11 months.
[52] The Learned State Counsel has submitted to Court that your remorse should not be considered as genuine since you have committed the same offence, at the very same premises, just five months after being punished by the High Court.
[53] In the circumstances, considering all the facts and circumstances of this case, including the nature and the gravity of the offending and your culpability and degree of responsibility for the offences, I am not inclined to suspend your sentence in its entirety.
[54] Accordingly, I am of the opinion that you should serve in custody a period of 6 months of the 2 year term of imprisonment that I am imposing on you, with effect from today. The balance period of 18 months would be suspended for a period of 7 years, to take effect from the day your custodial sentence of 6 months imprisonment is completed. You are advised of the effect of breaching a suspended sentence.
[55] Section 24 of the Sentencing and Penalties Act reads thus:
“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”
[56] Samisoni as stated earlier you were arrested for this case on 9 April 2020 and you were granted bail by this Court on 11 May 2020. Accordingly, you had been in remand custody for this case for 1 month. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that the period of 1 month should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.
[57] Therefore, you should serve in custody only the balance period of 5 months imprisonment. I reiterate, that the balance period of your sentence, which is 18 months imprisonment, would be suspended for a period of 7 years, to take effect from the day your custodial sentence is completed.
[58] As for you Jonacani, although I cannot consider you as a first offender, I have considered the following circumstances:
Accordingly, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentence.
[59] However, in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentence for a period of 5 years.
[60] In the result, your final sentence of 1 year imprisonment, is suspended for a period of 5 years. You are advised of the effect of breaching a suspended sentence.
[61] You both have 30 days to appeal to the Court of Appeal if you so wish.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 8th Day of December 2020
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the 1st and 2nd Accused: Office of the Legal Aid Commission, Suva.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2020/1055.html
