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State v Koroi [2014] FJMC 149; Criminal Case790.2014 (29 October 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: -790/2014

STATE

V

SERU KOROI
KOROI VEIKOSO
WILISIMESI RADOVU
ANASA LENIKALI

Counsels: Mr. Qalinauci for the State
Ms. David ( Legal Aid) for all the accused

SENTENCE

1. SERU KOROI, KOROI VEIKOSOI, WILISEMI RADOVU, ANASA LENIKALI you all were charged in this Court for one count of Attempted Aggravated Burglary contrary to Section 44 and 313(1)(a) of the Crimes Decree, No. 44 of 2009.
   
2. In this case also the High Court gave extended jurisdiction to hear this matter and on 08th August 2014 you all through your counsel informed this Court that you wanted to plead guilty for this offence. Thereafter the charge was read and you all pleaded guilty for this charge and also admitted the summary of facts tendered by the State.
   
3. According to the summary of facts on 23rd May 2014 at Lot 17 Volavola Road, Samabulla you all tried to break enter in to the complainant's flat with intent to commit theft.
   
4. After considering all of your pleas unequivocal I convict all of you for this charge.
   

LAW AND TARIFF

5. Maximum penalty for the offence of Attempted Aggravated Burglary is 17 years imprisonment.
   
6. In State v Josevata Lesumailodoni & Ors. HAC 94.2013s, his Lordship Justice Temo said:
   

"Aggravated Burglary carried a maximum sentence of 17 years imprisonment (section 313(1) of the Crimes Decree 2009). In the repealed Penal Code, Chapter 17, 'burglary' carried a sentence of life imprisonment (section 299 of Penal Code). In Viliame Gukisuva v. The State. Criminal Appeal No. HAA 177 of 2007, High Court, Suva, Her Ladyship Madam Justice N. Shameem held that the tariff was a sentence between 2 or 3 years imprisonment."

AGGRAVATING FACTORS

7. Following will be considered as aggravating this offence.
   

1. By trying to break in to the property of other people you all showed that lack of respect for property rights of others.
   

MITIGATING FACTORS

8. Following were submitted as mitigating factors in the mitigating submissions.
   

1st accused

1. 20years old
2. Single

100. Seeks forgiveness

4. First offender
   

2nd accused

1. 28 years old
2. Married with children

100. Seeks forgiveness
     

3rd accused

a) 20 years old
b) Single
c) Seeks forgiveness
d) First offender

4th accused

a) 19 years old
b) Single
c) Seeks forgiveness
d) First offender

9. After considering the facts in this case I select 26 months as my starting point for this offence and for the aggravating factor add 10 months to reach 36 months.
   
10. For the mitigating factors I deduct 06 months to reach 30 months and pleading guilty early I deduct 1/3 to reach 20 months for this offence .
    
11. As the final adjustment I consider the time spent in remand and deduct that period ( 2 months) to reach 18 months imprisonment.
    
12. The learned counsel for all the accused is asking to suspend this sentence while the state is asking for a custodial sentence.
    
13. KOROI VEIKOSOI you are not a first offender. You last conviction was for a theft and you were given a suspend sentence for 02 years. Within a 01 year after that you committed this offence. You have not learned and therefore a custodial sentence is warranted for you.
    
14. Accordingly you are sentenced to 18 months imprisonment for this offence to be served concurrently with the sentence in CF 861/2014.
    
15. SERU KOROI, WILISEMI RADOVU, ANASA LENIKALI you all are young offenders as well as first offenders. I believe a custodial sentence would not be suitable for all of you. Sending all of you to prison would allow you to mix with hardcore criminals and this would be not suitable for all of you as well as for the society in the long run . Therefore this Court will suspend all of your sentence for 03 years for the purpose of rehabilitation.
    
16. If 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.
    
17. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

29th of October 2014

H.S.P. Somaratne
Resident Magistrate, Suva