IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 62 OF 2012

BETWEEN:

STATE

AND:

MALAKAI LABALABA
[1st Accused]

LORIMA DUAKA YABAKIDUA
[2nd Accused]

APENISA NASORO
[3rd Accused]

Counsel: Ms K. Semisi for the State 
1st Accused – In Person

Date of Sentence
Hearing: 26th June, 2012
Date of Sentence: 3rd July, 2012

SENTENCE

1. The 1st Accused above named had pleaded guilty to the charges leveled against him. The charges are as follows:

First Count

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of the Crimes Decree No 44 of 2009.

Particulars of Offence

MALAKAI LABALABA, LORIMA DUAKA YABAKIDUA and APENISA NASORO on the 1st day of April 2012 at Nadi in the Western Division entered FLAVIO ITALIAN SHOP FIJI LIMITED owned by FLAVIO PISONI as trespassers with intent to commit theft therein.

Second Count

THEFT: Contrary to sections 291 (1) of the Crimes Decree No 44 of 2009.

Particulars of Offence

MALAKAI LABALABA, LORIMA DUAKA YABAKIDUA and APENISA NASORO on the 1st day of April 2012 at Nadi in the Western Division entered FLAVIO ITALIAN SHOP FIJI LIMITED and stole from therein 6 cartons of Di Puglia Biscuits, 6 cartons of Murgie Rosso Biscuits, 7 cartons of Castel Del Monte Biscuits, 4 cartons of Grifo Rose Biscuits, 5 cartons of Due Carri Saneilovese, 2 cartons of Souisitti Biscuits, 4 cartons of Chocolate Cookies, 4 cartons of Plain Cookies, 4 cartons of Olive Oil, 2 Gas Cylinders 1 Small Mini Fridge, 6 Frying Pans, Assorted Knives, Plates & Spoons, 1 Bag with Assorted Tools, 1 Electrical Lead Wife, 1 Rain Coat and 1 Coil Rope all valued at $3,006, the properties of FLAVIO PISONI.

2. The 1st Accused admitted to the Summary of Facts.

Summary of Facts

On the 1st April 2012, Malakai Labalaba and two others broke into the Flavio Italian Shop Fiji Limited on Denarau Road in Nadi and stole $3,006 worth of Italian imported Biscuits.

The complainant is Mr flavio Pisoni, originally from Italy and is running this business in Nadi.

On the 31st March 2012, the complainant and some of his staff members went to the shop and organized everything inside the shop anticipating the floods and left the shop after securely locking the doors. On the 1st April 2012, the complainant was informed by one of his staff members that the shop had been broken into and on the 2nd April 2012, the complainant went to check on his shop and found the main door broken and the above items stolen from therein.

The matter was reported to the police and upon receiving information, Malakai Labalaba was arrested and interviewed under caution wherein he admitted to breaking into the Flavio Italian Shop Fiji Limited and stealing several items from inside the store. Malakai Labalaba was later charged for one count of Aggravated Burglary, contrary to section 313 (1) (a) and one count of Theft, contrary to sections 291 (1) of the Crimes Decree No 44 of 2009.

3. Being convinced with the Plea of the 1st Accused being unequivocal he was found guilty and convicted as charged.

4. Malakai Labalaba you stand convicted for Aggravated burglary and Theft punishable under Section 313 (1) (a) and Section 291 (1) of the Crimes Decree 44 of 2009.

5. Section 313 (1) prescribes a maximum sentence of 17 years imprisonment.

6. Section 291 (1) of the Crimes Decree prescribes a maximum sentence of 10 years imprisonment.

7. Considering the tariff to the offence of Aggravated Burglary was discussed in Maharaj v The State (2011) FJHC; HAA 014.2011 and Tomasi Turuturuvesi v State (2002) AAA 86/02S according to these cases the tariff is between 18 months and 3 years imprisonment.

8. Tariff for Theft was discussed in Niudamu v The State (2011) FJHC 661; HAA 028.2011 (20th October 2011) the tariff set was 2 – 9 months. In Chand v State (2007) FJHC 65 HAA30.2007 Mataitoga J affirming the tariff of Larceny is with range of 2 to 3 years.

9. Considering law and the tariff I commence your sentence as follows:

(i)	Aggravated Burglary – 2 years imprisonment
(ii)	Theft – 12 months imprisonment.

10. Considering the aggravating factors:

(a)	You have entered a business place at Nadi Town;
(b)	You have burgled a shop which was closed for floods;
(c)	Your act causes the business community especially foreign investors insecure.

Considering above factors I increase your sentence by 6 months now your sentence are as follows:

(i)	Aggravated Burglary – 2 years & 6 months imprisonment
(ii)	Theft 18 months imprisonment.

11. Both offences were committed in the same course of transaction hence your both sentence will be implemented concurrently.

12. Considering the mitigating circumstances:

(a)	You have pleaded guilty at the very beginning of the case;

(b)	Your period in remand little more than 2 months

(c)	You are remorseful

(d)	Sole breadwinner of your family

(e)	Married, with 2 small children

(f)	Seeking forgiveness

Considering all above mitigating circumstances I reduce your sentence by 18 months now your sentence is 12 months imprisonment.

13. You plead with Court to consider a suspended sentence to you. I consider section 26(1) of the Sentencing & Penalties decree.

14. You have committed the offence at the time of National Disaster I am unable to consider your request fully. But considering the amount involved in the theft and your very early plea your sentence will be implemented as follows:
Part of your sentence of 3 months you will be serving immediately and the balance of 9 months is suspended for a period of 2 years.

15. You are sentenced to 12 months imprisonment 3 months you will be serving and the balance 9 months suspended for a period of 2 years.

16. 30 days to appeal to Court of Appeal.

S. Thurairaja
JUDGE

At Lautoka
3rd day of July 2012