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State v Tikotoga [2018] FJMC 68; Criminal Case 798 of 2017 (18 July 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 798/2017

STATE

V

SUKULU TIKOTOGA

For the Prosecution : WPC Siteri

The accused : In person

Date of Hearing: 17^th of July 2018

Date of Sentence: 18^th of July 2018

SENTENCE

1. SUKULU TIKOTOGA, you were charged with one count of Burglary contrary to section 312(1) of the Crimes Act No 44 of 2009(“Crimes Act”) , one count of Theft contrary to section 291(1) (2) of the Crimes Act .
2. You pleaded not guilty and later made an application to recuse from hearing this case as you have been convicted earlier by this court for similar offences.
3. When this was called on 17^th July 2018 for your recusal application, you informed that you would not proceed with that and also wanted to change your plea.
4. The charge was put and you pleaded guilty for both counts.
5. You also admitted the following summary of facts presented by the prosecution :

Between 21/12/17, 6.30pm to 8.30am [22/12/17], one Sukulu Tikoitoga [accused] 27 years, Unemployed of Jitu Estate, Raiwaqa broke and entered into the Shop namely Yunpeng He Store, located in Nausori Town and stole $4,000 cash the property of Yupeng He [PW-1], 32 yrs, Businesswoman of Namadi Heights.

At about 1am, 22/12/17, WPC Miliakere Turagaruli [PW-2], 34 yrs and PC 5597 Iakobo [PW-3], 37 yrs both Police Officers of Nausori Police Station were doing beat patrol duties in Nausori Town with PC5321 Vilikesa [PW-4], 38 yrs, Police Officer of Nauori Police Station, Whilst patrolling near ANZ Bank, the Police Officers saw someone walking on top of the roof of ANZ Bank. The Police Officers approached [Accused] and [PW4] asked what he was doing on the roof and [Accused] told [PW-4] that he was looking for his torch. [Accused] then jumped up the roof and ran. [PW-3] and [PW-4] climbed up the building looking for the [Accused] who was not seen anywhere. [PW-3] [PW-4] then came down the building and then started looking for the [Accused] . [PW-4] upon reaching the corner of the building saw [Accused] hiding and went to arrest him. [Accused] struggled with [PW-4] and in the process damaged the police shirt of [PW-4] valed at $40.00. [PW-3 also came looking for [Accused] and saw [PW-4] struggling and assisted in arresting [Accused]. [Accused] had a dark blue bag in his possession. Upon searching [accused] he was found with cash $371.90, 1 power bank, 2 earphone, 1 white usb cable, 4 battery, 1 white and yellow torch. Later [PW-1] reported that her Shop was broken into and the above mentioned items stolen.

[Accused] was interviewed under caution whereby he admitted breaking into the Shop and stealing the cash. He further stated that he gained entry by forcefully breaking the door. Accused was then charged for the offence of Burglary contrary to Section 312 and Theft contrary to Section 291 both of Crimes Act No 44 of 2009.

6. I am satisfied that your plea was voluntary and unequivocal. Accordingly I convict you for this charge.
7. The maximum penalty for Burglary under the Crimes Act is 13 years imprisonment.
8. The penalty for the Theft is 10 years imprisonment.
9. In State v Mate - Sentence [2018] FJHC 249; HAC76.2018 (3 April 2018) his Lordship Justice Goundar observed :
   

“The maximum penalty prescribed for burglary is 13 years imprisonment. The suggested tariff for burglary is between 1 to 3 years’ imprisonment Waqavanua v State [2011] FJHC 247; HAA013.2011 (6 May 2011); Uluicicia v State [2015] FJHC 61; HAA028.2014 (30 January 2015).

[5] The maximum penalty prescribed for theft is 10 years imprisonment. The tariff depends on the nature of theft, but it can range from 2 months to 3 years imprisonment (State v Saukilagi [2005] FJHC 13; HAC0021X.2004S (27 January 2005)).”

10. Section 17 of the Sentencing and Penalties Act, provides:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

11. The offences that you convicted are found on same facts and hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act.
12. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

13. Considering the above judicial precedents and based on an objective seriousness of offences, I select 18 months as starting point of your aggregate sentence.
14. These offences were committed in the night time and the values of the stolen properties are substantial. I consider these as aggravating factors and add 06 months to your aggregate sentence to reach 24 months imprisonment.
15. In mitigation this morning you submitted that you are 27 years old, married with a child and seeking forgiveness. For these limited mitigating factors I deduct 04 months to reach 20 months imprisonment.
16. Since you have previous conviction you are not entitle for discounts for your previous good character.
17. By pleading guilty even at this late stage you saved the court from going for a hearing and for that I deduct 03 months to reach 17 months imprisonment.
18. Finally I note that you were in remand for this case from 25^th December 2017 to July 2018 when you were sentenced for another matter. But during this period you escaped from lawful custody on 08^th January 2018 until you were arrested and remanded again on 22^nd January 2018. After deducting this period, I find you were in remand for nearly 07 months and pursuant to section 24 of the Sentencing and Penalties Act this period is deducted to reach 10 months imprisonment.
19. Even though this is below the accepted tariff, I have come to this sentence based on mitigating factors, guilty plea and the remand period of the accused.
20. Since you are already serving prisoner I sentenced you to 10 months imprisonment for this charge to be concurrent to your present imprisonment.
21. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate