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State v Berwick [2012] FJMC 274; Criminal Case 541-543.2006 (2 November 2012)

IN THE MAGISTRATE COURT OF FIJI ISLANDS
WESTERN DIVISION AT NADI
[CRIMINAL JURISDICTION]


CRIMINAL CASE NO: 541/06
542/06
543/06


THE STATE


V


SAILOSI MATAULOKI BERWICK


Sgt Naidu for prosecution
Ms Sharma (L A C ) for Accused
Date of Sentence: 2012-11-02.


SENTENCE


  1. You are charged in CR 541/06 with one count of Office Breaking with intent to commit felony contrary to section 302 (2) of the Penal Code, two counts of throwing object contrary to section 105 of the Penal Code, two counts of criminal intimidation contrary to section 330 (A) of the Penal Code and two counts of damaging property contrary to section 324 of the Penal Code. In CR 542/06 you are charged with one count of shop breaking with intent to commit felony contrary to section 302 (2) and one count of damaging property contrary to section 324 of the Penal Code. In CR 543/06 you are charged with one count of Robbery With Violence contrary to section 293 (1) (b), two counts of criminal intimidation contrary to section 330 and one count of damaging property contrary to section 324 of the Penal Code.
  2. You pleaded guilty to the charges when the charges were read out and explained to you and after you confirmed that you understood the charges.
  3. A summary of facts was put to you by the prosecution and you admitted the facts stated therein. Prosecution tendered a copy of it to court.
  4. I have reviewed the facts against the particulars of the offences charged in this case and I am satisfied that they support the essential constituents of the charges in the information laid against you by the prosecution.
  5. I therefore convict you as charged on all counts.
  6. The facts of the case were that: CR 541/06-between 18.05.2006 and 19.05.2006 you with seven others at Nadi Airport Industrial area broke and entered the office of Avis Rental by cutting the padlock.

At the same time and at the same place you threw stones and empty beer bottles at the police officers and three ADT security officers who had come to attend the report of alarm.


At the same time and at the same place you threatened the police officers and ADT security officers with cane knives, pinch bars iron rods and broken beer bottles.
At the same time and at the same place you damaged both the front and back right side door glass of police vehicle registration number GN 281 valued at $500.00 and also damaged the right window glass ADT vehicle registration number ER 096 valued at $200.00.


CR 542/06- at about midnight on 19 May 2006 at Main Street Nadi Town you broke into the Lotus Money Exchange Shop with intent to commit felony namely theft at the same time damaged the front left fender and door glass of vehicle registration number GN 350 valued at $600.00, the property of Fiji Police Force.


CR 543/06-at about 0300hrs at the Sun Seekers Hotel, Narewa Nadi with others robbed one Shakeel Chand of $400.00 cash and a mobile phone valued at $200.00 after threatening him with cane knives, crow bars and empty bottles, after robbing Shakeel Chand you threatened and chased one Kamlesh Sharma with the crow bar and cane knife, threatened and chased police officers with cane knives, stones and empty bottles and at the same time damaged the left and right side of the vehicle registration number GN 186, the property of the Fiji Police Force by throwing stones at it and causing damage valued at $200.00.


  1. The aggravating factors are that: Premeditation, total disrespect of the property right of the complainant and the law, causing loss to a business premises and attacking police officers and security officers. For robbery with violence: premeditation, joint criminal enterprise and using weapon aggravated the offence.
  2. Your personal circumstances, guilty plea and remorse are your mitigations.
  3. You are 37 years of age. You are currently separated and have 2 children aged 5 years and 3 years residing with you. You are currently employed by the Sports Council as a night guard and earn $120.00 per week.
  4. Your counsel tendered several character references and submitted that you had actively engaged in outreach programmes in prisons, schools and the community at large in Lautoka and Sigatoka areas. You seek forgiveness from the court and promise that you will not re-offend.
  5. You admitted 29 previous convictions from 1990 till 2002. Your last conviction dates 26. 8. 2002. Your last conviction is now 10 years old. I therefore disregard all of your previous convictions as dead.
  6. The maximum sentence for office breaking with intent to commit felony is seven years imprisonment under section 302 of the Penal Code.
  7. On appeal where the accused was found cutting the shop roof with a pinch bar at night, but fled, "there can be no misunderstanding about a person's intent. He clearly had intent to commit a felony". Thus sentence of 2 years, being at the lower end of the scale, is not harsh or excessive where appellant had 24 previous convictions. No good reason not to activate the suspended sentence: per Shameem, J in Viliame Bale v State [2004] HAA32-33/04S 4 June 2004.
  8. In your case I would select 2 years as my starting point for office breaking with intent to commit felony. I add 4 months to reflect the above aggravating factors. You did not enter your guilty plea at the first possible opportunity. You have taken some 6 year to record the guilty plea hence you are not entitled to have your sentence reduced by a third. Nonetheless, I deduct 5 months to reflect your guilty plea. I discount further 5 months for your mitigation. Your final sentence for office breaking with intent to commit felony is 18 months imprisonment.
  9. The maximum sentence for Throwing Object is 3 years under section 105 of the Penal Code.
  10. On a charge of throwing object (stones) (s.105) at police officers while resisting arrest, although none hit them, 2 counts of assaulting and resisting arrest, Found in Possession of Dangerous Drugs (s. 8 (b) of the Dangerous Drug Act) and damaging property justified a short custodial term of 6 months on each count to be served concurrently: Per Shameem, J in Hebert Wise v State [2005] HAA 117J/05S 4 November 2005.
  11. I therefore in your case fix your sentence at 6 months on each count of throwing objects at police officers.
  12. The maximum sentence for criminal intimidation is 10 years imprisonment under section 330 of the Penal Code.
  13. in the case of State v Baleinabodua [2012] FJHC 981; HAC145.2010 (21 March 2012) Hon. Justice Temo held,

'In my view, an acceptable tariff would be a sentence between 12 months and 4 years imprisonment. Serious cases should be given the sentence in the upper range, while less serious cases should be given sentences at the lower end of the scale'.


  1. '12 months was correct in principle for appellant who, with intent to cause alarm, threatened to kill his father with a cane knife: per Shameem J in Samisoni Mua Rabaka v State [2007] HAA149/06S, 16 February 2007.
  2. You with intent to cause alarm threatened the police officers with cane-knife, crow bar and stones. I therefore taking all into my account, fix your sentence at 10 months imprisonment on each count of criminal intimidation.
  3. The maximum sentence for Damaging Property is two years under section 324 of the Penal Code. The tariff for such an offence is 6 months imprisonment. In the case of Seru v State [2002] FJHC 183; HAA 0084J.2002S where Justice Nazhat Shameem stated:

"...criminal damage of a door valued at $250.00, the maximum sentence of 2 years imprisonment appears to be manifestly excessive. It is reduced to 6 months imprisonment".


  1. In your case, considering all into my account, fix your sentence at 6 months imprisonment on each count of damaging property.
  2. The offence 'robbery with violence' carries a penalty of life imprisonment according to section 293-(1) of the Penal Code Cap 17.
  3. From a 5 year starting point, 5 1/2 years for critical role in ensuring the joint criminal enterprise of Burglary (s. 299 (a) & (b) and robbery with violence (s.293 (1) ) was successful, for a cowardly home invasion violating the privacy of a family, total lack of respect towards victims property and personal enjoyment of their rights in their own home; Yasa's co-accused stern punishment of 10 years to indicate public disapproval of conduct which strikes at a very heart of safety and security of the public: per Goundar, J in State v Sailosi Ralago Volivale [2009] HAC 30 (A) /05S 18 June 2009.
  4. You had committed this offence in 2006. I have to consider the tariff that was prevalent during that period. Accordingly, in your case, I select 3 years imprisonment as my starting point for robbery with violence. I add 12 months for the aggravating factors stated above. I deduct 9 months for your belated guilty plea. I discount further 5 months for your mitigation. Your final sentence on each count of robbery with violence is 34 months imprisonment.
  5. Your sentences may be summarized as follows:
    1. C/F No. 541/06- Count 1: 18 Months imprisonment
  6. In C/F No. 541/06 all sentence except count 4 to be served concurrently with each other. Count 4 contains contempt charge in that you criminally intimidated the police officers. Therefore you have to serve the sentence on count 4 consecutive to other sentences hence in total for C/F No.541/06 you are to serve 28 months imprisonment.
  7. In C/F No. 542/06 you get 18 months imprisonment for count 1 and 6 months imprisonment for count 2. Both sentences are to be served concurrently with each other hence in total you are to serve 18 months imprisonment.
  8. In C/F No.543/06 your sentences are as follows:
    1. Count 1: 34 Months imprisonment
    2. Count 2: 10 Months imprisonment
    3. Count 3: 10 Months imprisonment
    4. Count 4: 6 Months imprisonment
    5. Count 5: 10 Months imprisonment (to be served consecutive to other sentences)
  9. All sentences in C/F No. 543/06 are to be served concurrently with each other hence in total you are to serve 44 months imprisonment.
  10. Considering the totality principle I order all these sentences should be served concurrently with each other. Therefore in total you have to serve 44 months imprisonment.
  11. The sentence has exceeded 2 years as such the question of suspension of the sentence will not arise in your case.
  12. Twenty eight (28) days to appeal.

ORDER


[22] I make the following order:


1. Sailosi Matauloki Berwick, you are hereby sentenced to 44 months' imprisonment.


.....................................
M H Mohammed Ajmeer
Resident Magistrate
Dated at Nadi this 2nd day of November 2012.

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