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State v Vasuinadi [2014] FJMC 136; Criminal Case 19.13 (19 September 2014)

IN THE MAGISTRATE'S COURT
AT TAVEUNI
IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 19/13

State

V

TEVITA VASUINADI

Prosecution : Cpl Epeli (Police Prosecution)
Accused : Present – in Person

SENTENCE

Tevita Vasuinadi this is your sentence for the charges of burglary and theft. You elected that this Court deal with the charges. You have waived right to legal counsel and pleaded guilty on your own free will to the following charges on your own free will:

Count One

Statement of offence [a]

Burglary: contrary to Section 312 (1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Tevita Vasuinadi on the 16th day of February, 2013 at Taveuni in the Northern Division, entered into the dwelling house of Ravin Kumar as a Tresspasser with intent to steal.

Count Two

Statement of offence [a]

Theft: contrary to Section 291 (1) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Tevita Vasuinadi on the 16th day of February, 2013 at Taveuni in the Northern Division,, dishonestly appropriated $400.00 cash, 15 BH 10 cigarettes valued $63.00, 6 x $6.00 Vodaphone Recharge Cards valued $36.00 all to the total value of $499.00, the property of Ravin Kumar.

Tevita Vasuinadi, you have admitted the statement of facts as read out by the prosecutor on your own free will. You have mitigated and the Court has noted your mitigation. You did not say much in mitigation expect say that you will be released in October. This Court notes that you are a serving prisoner. You are serving for a similar offence for which you were sentenced earlier this year. This Court notes that the Criminal records have not been updated but the Court has noted from the Court files that you were sentenced in CR 020/2013 for 2 years.

The offence of burglary is provided for under Section 312 of the Crimes Decree which states that “(1) 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 Maximum Penalty prescribed is — Imprisonment for 13 years.

The maximum penalty for theft is imprisonment for 10 years.

The Sentencing and Penalties Decree 2009 is the relevant law for sentencing offenders and it makes comprehensive provision for the sentencing of persons for criminal offences and to the reform processes applicable to the prescription of penalties in the laws of Fiji and the determination and enforcement of a range of sentencing options imposed by the courts, and for other related purposes.

Section 4 of the Sentencing and Penalties Decree sets out the guidelines which a Court may consider when imposing sentences and dealing with offenders. This Court has considered the relevant sections of the Sentencing and Penalties Decree.

This Court notes the Tariffs for Burglary and Theft is noted as follows. In State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), Justice Madigan for the burglary offences t starting poig point of three years, which his Lordship stated should be the accepted tariff for domestic burglary. Whilestartingrting point for theft was taken as thrers.

"h2"> In State v Vinakasigaduwa [2011] FJHC 77; HAC156.2010 (18 February 2011), Justice Nawana stated that20;thiff for the offenoffence of 'Burglary', as founded on the basis of the provisions of the olhe old Penal Code, was 18 months to 3 years imprisonment (State v Mikaele Buliruarua) [2010] FJHC 384; (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).” Justice Nawana further stated that “in Buliruarua's case (supra), the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Burglary' under the Decree." and that he "would accordingly adopt the same tariffs for the offences of 'Burglary' and 'Theft' under the Decree in this case."
Noting from the two cases in the High Court (State v Tabeusi and State v Vinakasigaduwa) this Court notes that the tariff for burglary and theft is between 1 to4 years imprisonment.
Count One – Burglary
This Court takes a starting point of 3 years (36 months) for the 1st Count which is Burglary. For the guilty plea on the Court gives 1/3rd which is 12 months and further 3 months discount for your mitigation. Your sentence for the charge of Burglary is 21 months.
Count Two – Theft
This Court takes a starting point of 3 years (36 months) for the 2nd Count Of theft.. For the guilty plea on the gives 12 months discount and further 3 months for your mitigation. Your sentence for the charge of theft is 21 months imprisonment.
At this juncture I am minded to restate what Justice Madigan stated in State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), that "the Court cannot ignore its responsibility to the community to protect it from wanton crime. People should be free to enjoy their homes with impunity and without uninvited invasion and to maintain their possessions without fear of theft. The people in the urban areas of Fiji are presently terrified of robberies and unwanted invasions, and it is the Court's duty to attempt to alleviate thears by keeping "career burglars" such as [you, the accused] off the streets."
The frequfrequency and the number of home invasions are increasing, people are living in fear and the only way to alleviate fear is to keep career burglars like you off the streets. The simple message is that home invaders will be imprisoned.
As the burglary and theft offences were part and parcel of a single transaction this Court will impose a concurrent sentence.
Your sentence is summarised as follows:
(a) Count One - Burglary – 21 months Imprisonment.
(b) Count Two – theft – 21 months Imprisonment, to be served concurrent to Count One.
You have 28 days to appeal this sentence in the High Court.

Chaitanya Lakshman

Resident Magistrate

5th September 2014