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State v Donu [2011] FJMC 49; CRC440.2008 (1 April 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal case No 440/08

BETWEEN

THE STATE

AND

KAMINIELI DONU

SENTENCE

1. You Kaminieli Donu are to be sentenced upon pleading guilty to one count of unlawful use of motor vehicle contrary to section 292 of the Penal Code and one count of shop breaking entering and larceny contrary to section 300(a) of the Penal Code.
   
2. The maximum punishment for unlawful use of motor vehicle is six months imprisonment and or $100 fine. The maximum punishment for shop breaking entering and larceny is imprisonment for fourteen years and the tariff is between 2 – 3 years imprisonment.
   
3. It was revealed that on the 15th April 2007 at about 11 pm you with others entered into the compound of one Kajal Kiran, and drove away the vehicle registration no EB 938 of Sabra Bibi. You parked the stolen car near the MH Supermarket and got off the car with the others, masked and armed with pinch bars, bolt cutter and bottles. You with other men broke and entered into MH Supermarket around 11.45 pm and stole mobiles phones worth of $ 14 379. You and the others broke the main door glass of the super market and gained entry. You stood on the door way guarding the door. Later you and the others fled the scene in the stolen car with the stolen items.
   
4. I observed the following aggravating factors in this case;
   
   1. It appears to be a well planned offence.
      
   2. You committed the offence whilst being a member of a gang of men.
      
   100. You used a stolen car to commit the offence.
        
   4. You used weapons such as pinch bars, bolt cutter and bottles.
      
   5. You were masked to hide your identity.
      
   6. Items worth of a substantial amount were stolen.
      
   7. No recoveries are made.
      
5. In mitigation you said that you are 29 years old. Married with 2 children. You said you are sorry for what you did. You asked for a concurrent sentence. You pleaded that you may be transferred to Natabua prison since it is easy for your family to visit you.
   
6. It should be noted that the place where you should serve the imprisonment is decided by the prison authorities based on security, resources and other relevant issues. The court cannot decide the prison in which you should serve the term. Yet I inform the prison authorities to consider your application to transfer you to Natabua prison.
   
7. Be that as it may, the Court has to impose appropriate sentences in cases of this nature. Further it is the duty of the Court to ensure that the members of the public can run their lawful businesses without fear. Invasions into other's properties in this manner have to be dealt with accordingly to send a stern message to those who are minded to indulge in this kind of offences as well.
   
8. Having said that, I pick my starting point for the second offence as 2 years and six months. For the aggravating factors I enhance the sentence by 12 months. For the mitigatory factors I reduce the sentence by 6 months. Accordingly I arrive at a sentence of 3 years.
   
9. I decide to impose 2 months imprisonment for the first count based on the judgment in Kaminieli Donu V State HAA 027 of 2010 by Justice P.K. Madigan.
   
10. Although you pleaded guilty, that can not be considered as an early guilty plea. You have 10 previous convictions.
    
11. You are a serving prisoner now. However before you were sentenced to prison you were in remand for 8 months. Although the time you were in remand was considered in the sentences already imposed on you, I decide to deduct the time you were in remand from this sentence too.
    
12. Accordingly I impose the sentences in the following manner;
    

1st Count – I impose 2 months imprisonment.

2nd Count – I impose two years and four months imprisonment.

Both sentences should run concurrent to each other.

13. You have asked for the sentences imposed in this case to run concurrent to the terms you are already serving now. I have considered the gravity of the offence you committed. Further I have considered the fact that you have been imposed concurrent sentences in most of the cases you have been convicted of. But I do not think the circumstances of this case warrant this court to order the sentence to run concurrently, to the sentences you are already serving. Thus I order that these sentences should run consecutive to the terms you are already serving.
    
14. Accordingly you should serve a total of two years and four months consecutive to all the sentences you are serving now.
    
15. You have been already sentenced to 8 years and eight months in Case no 903/08 following an appeal by you and a parole period of 6 years is set in that case. However as per the section 20 of the Sentencing and Penalties Decree, I fix a new single non parole period for all the sentences you serve, to stand as 6 years from this date.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
01.04.2011