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State v Drua [2013] FJMC 319; CF44.13 (15 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 44 of 2013

THE STATE

–v-

FILIMONI DRUA

For the State : PC Pauliasi.
For the Accused : Mr.Tawake [LAC] Present

SENTENCE

1. FILIMONI DRUA, you have pleaded Guilty to charges in cases as follows;
   

One count of Burglary contrary to section 312 (1) of the Crimes Decree No.44 of 2009 and one count of Theft contrary to section 291 (1) of the Crimes Decree No.44 of 2009.the particulars of offence as follows;

Count 1: Burglary

FILIMONI DRUA, on the 05th day of January, 2013 at Samabula Health Center, Samabula in the Central Division, broke and entered into Samabula Health Center, with intent to commit THEFT.

Count 2: Theft

FILIMONI DRUA, on the 05th day of January, 2013, at Samabula Health Center, Samabula in the Central Division, dishonestly appropriated (stole) 1 x Compaq Laptop with charger valued at $1600.00, the property of ELVIVA ONGBIT.

2. You were convicted of the charge on your own plea of guilty. I am satisfied that you are fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you are as follows;
   

Count1

On the 05th of January 2013 at about 1.30pm at Samabula Health Centre, Samabula Doctor ELVIVA ONGBIT at Samabula Health Center of 22 Namuka Street, Samabula securely locked her office and went for lunch.FILIMONI DRUA [Accused] of 46 Nayau Street, Samabula came to the Samabula Health Center to change his bandage. The [Accused] was attended by LANI RAGUSULOTO Staff Nurse at Samabula Health Center to change the [Accused] bandage.The [Accused] left out the back door and went to ELVIVA ONGBIT's office window and removed on louver blade with the intention of stealing ELVIVA ONGBIT's laptop.

Count2

On the 05th of January 2013 at about 1.30pm at Samabula Health Centre, Samabula Doctor ELVIVA ONGBIT at Samabula Health Center of 22 Namuka Street, Samabula securely locked her office and went for lunch. ELVIVA ONGBIT returned to the office and found her laptop bag which contained her COMPAQ laptop valued at $1,600.00 stolen. LANI RAGUSULOTO staff Nurse at Samabula Health Center was at the receptionist when she saw FILIMONI DRUA [Accused] of 46 Nayau Street, Samabula walked passed the back door carrying a black laptop bag. LANI RAGUSULOTO yelled out to the [Accused] and chased him to the Old Peoples Home Compound whereby the [Accused] threw the laptop bag back and ran away. LANI RAGUSULOTO brought the laptop bag and returned in to ELVIVA ONGBIT.ELVIVA ONGBIT lodged a report at Samabula Police Station. The [Accused] was arrested and interviewed under cautioned whereby he admitted the allegations. The [Accused] was subsequently charged for a count of and BURGLARY: Contrary to Section 312 (1) of the Crimes Decree Number 44 of 2009 and THEFT: Contrary to Section 291 (1) of the Crimes Decree Number 44 of 2009.The (Accused) has no previous convictions

4. Statutory Indication, Tariff and guidelines;

Burglary contrary to section 312 (1) of the Crimes Decree No. 44 of 2009

I reproduce section312. (1) of the Crimes Decree N0.44 of 2009 for clarity. it states; 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.

(2) For the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of burglary.

Maximum Penalty for the offence of burglary is Imprisonment for 13 years.

Tariff

The tariff for the offence of Burglary and Housebreaking was set by Justice Shameem in the case of Sitiveni Cikamatana –v- The State [2006] HA081/2006 where her ladyship stated that the tariff is from a suspended term to 3 years in prison with sentences at the lower end of the tariff being reserved for first offenders and it was held in Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002, and Mesake Ratabua v The State [2004] HAA 026 of 2004 and Charlton Lanyon v The State [2004] HAA 042 of 2005 that thetariff for the offence of Burglary between18 months to 3 years .

In State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), justice Madigan for the burglary offences took a starting point of three years, which his Lordship stated should be the accepted tariff for domestic burglary. While the starting point for theft was taken as three years.

Theft contrary to section 291 (1) of the Crimes Decree No. 44 of 2009

Section 291 (1) of the Crimes Decree No.44 of 2009;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.

Maximum penalty for theft is Imprisonment for 10 years.

Tariff

It was held in Tikoitoga v State (2008,FJHC 44, HAM 088 2007)The Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vatunalaba (2010, FJHC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small.

According to the above guidelines and information revealed by the Summary of Facts placed before court; the crime you committed amount to Burglary in a building other than a dwelling. In this scenario I wish to consider below mentioned guidelines and accompanying notes are taken from the Sentencing Guidelines Council's of United Kingdom definitive guideline pursuant to "Theft and Burglary in a building other than a dwelling," published 9 December 2008 set out the factors to take into consideration Burglary in a building other than a dwelling as listed below;

(a). When burglary committed in a building other than a dwelling where an offender enters as a trespasser with intent to steal or, having entered as a trespasser, actually goes on to steal.

(b). The starting points and sentencing ranges in this guideline are based on the assumption that the offender was motivated by greed or a desire to live beyond his or her means. To avoid double counting, such a motivation should not be treated as a factor that increases culpability.

(c). The starting point is based on the loss suffered by the victim. Whilst, in general, the greater the loss, the more serious the offence, the monetary value of the loss may not reflect the full extent of the harm caused by the offence. The court should also take into account the impact of the offence on the victim (which may be significantly greater than the monetary value of the loss; this may be particularly important where the value of the loss is high in proportion to the victim's financial circumstances even though relatively low in absolute terms), any harm to persons other than the direct victim, and any harm in the form of public concern or erosion of public confidence.

(d). Offences of this type will be aggravated where the offender targets premises because high value, often easily disposable, property is likely to be found there as this indicates professionalism and organisation in the offending, as well as an intention to derive a high level of gain. Targeting of vulnerable community premises may result in a higher than usual degree of harm due to the inconvenience, distress and expense caused to the victim. Where premises which have been burgled on a prior occasion are targeted, this indicates planning, organisation and professionalism and, therefore, should be regarded as increasing the offender's culpability. Repeat victimisation may also increase the harm caused by the offence in terms of distress, inconvenience and expense to the victim.

(e). The Council has identified the following matters of offender mitigation which may be relevant to this offence:

• (i). Return of stolen property Whether and the degree to which the return of stolen property constitutes a matter of personal mitigation will depend on an assessment of the circumstances and, in particular, the voluntariness and timeliness of the return.
  
• (ii). Impact on sentence of offender's dependency Where an offence is motivated by an addiction (often to drugs, alcohol or gambling) this does not mitigate the seriousness of the offence, but a dependency may properly influence the type of sentence imposed. In particular, it may sometimes be appropriate to impose a drug rehabilitation requirement, an alcohol treatment requirement (for dependent drinkers) or an activity or supervision requirement including alcohol specific information, advice and support (for harmful and hazardous drinkers) as part of a community order or a suspended sentence order in an attempt to break the cycle of addiction and offending, even if an immediate custodial sentence would otherwise be warranted.
  
• (iii). Offender motivated by desperation or need The fact that an offence has been committed in desperation or need arising from particular hardship may count as personal mitigation in exceptional circumstances.
  

5. I have considered relevant aggravating factors which has stipulated in above paragraph and now proceed to consider following mitigating factors which were brought before me in mitigation submission. That you are;
   
   1. 20 years old; single; Labour with Plumbing Services and earn $110.00 per week.
   2. Live with parents and 2 young brothers. Young offender.
   100. You were drunk and was looking for money to buy more drinks.
   4. You entered an early guilty plea to the charge and in doing so had saved the Prosecution and the Court's time and expenses from a full hearing.
   5. No one was terrorized when the offence was committed.
   6. Remorseful; admitted the offence
   7. Seeking forgiveness from Court and promises not to re-offend.
      
6. Sentence
   

In sentencing you, I consider the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.

Count 1

Upon considering above discussed guidelines, Tariff for the offence of Burglary and aggravating factors of this offence, I select 24 months as a starting point for your sentence.

In considering your early guilty plea at the first available opportunity I reduce 1/3 of your sentence which reach the period of 16 months. For the relevant aggravating factors discussed in [b] and [c] of the 4th paragraph I increase 6 months and for mitigating factors I reduce 03 months.

You are a first offender, and I deduct 06 months from your sentence for your previous good character to reach the period of 13 months.

You were remanded in custody from 07th January 2013 to 21st January 2013, in total you was remanded for about 2 weeks in custody for this particular matter; therefore, in pursuant to section 24 of the sentencing and penalty Decree I deduct 02 weeks from your sentence. Now your sentence stands for 13 months and 02 weeks.

Accordingly, I sentence you 12 months and 02 weeks imprisonment period for the offences of Burglary contrary to section 312 (1) of Crime Decree No 44 of 2009.

Count 2

I pick 15 months as a starting point for your sentence. Considering your early guilty plea in the first available opportunity I reduce 05 months.

In view of abovementioned aggravating factors I increase 06 months, to reach the period of 16 months and I reduce further 06 months for other mitigating factors. You are entitle for further deductions for your previous clear records accordingly, I deduct 03 months from you sentence. Now your sentence stands for 07 months imprisonment period.

Accordingly, I sentence you 07 months imprisonment period for the offence of Theft contrary to section 291 (1) of Crime Decree No 44 of 2009.

Considering the circumstances of this case, I am of the view that it is just in the circumstances to suspend your sentence. Accordingly, FILIMONI DRUA, this is your sentence: -

For the First Count of Burglary I sentence you to 12 months and 2 weeks imprisonment period

For the Second Count of Theft I sentence you to 07 months imprisonment period

Both counts to be served concurrently.

Section 26 (2) (b) of the Sentencing and Penalties Decree provides a sentence which is below two years could be suspended by this court. Now, this court has to determine the imprisonment periods to be suspended or not.

The level of the tariff goes to reflect the seriousness of offence of this nature. You have sought the Court to impose a non-custodial sentence as you are a first offender and you have shown signs of remorse.

You are first offender. I also note that the stolen item was recovered.

I draw my attention to the case of Pita Seruvatu v State Crim. App N0.85 of 1992 where the Justice Jesurathem stated that "It has been emphasized by the Court that when the accused is a first offender it should be the endeavour of the sentence to keep him away from prison as far as possible" Further, in Akeai Ranuku v The State HAA 009 of 2009 Justice Daniel Goundar stated that " It is trite principle of sentencing that every effort should be made to keep young and first time offenders away from prison...".

Considering the circumstances of this case, I am of the view that it is just in the circumstances to suspend your sentence enabling you to reform and rehabilitate away from a custodial sentence. Accordingly suspend your sentence for three years.

Should you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.

I also order that the recovered item which is in Police custody has to be returned to the Owner.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

On this 15th day of July 2013