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State v Bokadi [2011] FJMC 70; CRC366.2011 (14 June 2011)

IN THE MAGISTRATE'S COURT OF FIJI ISLANDS AT NADI

CRIMINAL CASE NO: 366 /11

THE STATE

V

PONIPATE BOKADI

Ms. A Ana for prosecution
Accused in person
Date of Sentence: 14. 06. 2011.

SENTENCE

1. You, PONIPATE BOKADI, were charged with one count of Burglary contrary to section 312 (1) and one count of Robbery contrary to section 310 (1) (a) of the Crimes Decree No.44 of 2009 and one count of Brach of Order on Suspended Sentence contrary to section 28 (1) of the Sentencing and Penalties Decree 2009.
   
2. You had elected your trial to be tried by this court. You pleaded guilty to the charges when the charges were read and explained to you after confirming that you understood the charges.
   
3. Summary of facts was put to you by the prosecution and you admitted the facts stated therein. I have reviewed the facts against the charges laid in the information and they support the essential constituents of the charges. I therefore convict you as charged on both counts.
   
4. The outline of facts admitted by you confirms that on the 30th April 2011 at about 0400hrs you (and Accused 1) broke into the Lako Mai Spa shop No.2 at Nadi Town. On the day in question you and accused 2 broke the back door of the shop by cutting the padlock and forced open the burglar bar and wooden door. When breaking the police vehicle arrived at the scene and you ran and hid inside the tool room. (for count 2) On 8th June 2010 you were given 2 years suspended sentence for Burglary and Theft in CF-655/10. By committing the offence at hand within the operational you have breached the condition of the suspended sentence in violation of section 28 (1) of the Sentencing and Penalties Decree 2009.
   
5. The mitigating factors are: your early guilty plea, you are 20 years of age, single, unemployed, apologize and promised that you will not re-offend.
   
6. The aggravating features are: invasion of the complainant shop at dawn breaking the back door by cutting the padlock, you had a pinch bar with you and total disrespect of the property right of the complainant.
   
7. The offence 'Burglary' carries a penalty of 13 years imprisonment according to section 312 of the Crimes Decree No. 44 of 2009.
   
8. I fix sentence at 24 month for burglary. I discount 8 months for your early guilty plea. This brings an interim total of 16 month. For the above aggravating features I increase by 4 month. In total then you are to serve 20 month for burglary.
   
9. Breach of order suspending sentence is an offence against section 28 (1) of the Sentencing and Penalties Decree 2009. Section 28 (4) of the Decree enacts as follows:-
   

(4) If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a fine not exceeding 100 penalty units and in addition the court must restore the sentence or part sentence held in suspense and order the offender to serve it, but of the court considers that exceptional circumstances exist that make this unjust, the court may instead—

(a) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or

(b) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the ate of the order under this sub-section; or

(c) make no order with respect to the suspended sentence.

10. You were given a chance to rehabilitating yourself. Instead you had committed another similar offence within 9 months of the suspending order. The subsequent offence is so serious wherein you had committed burglary at dawn. I therefore restore the sentence held in suspense and order to serve it and also impose a fine of $200.00 for breach of order suspending sentence. You have to serve these sentences consecutively hence you are to serve a total of 44 months imprisonment.
    
11. I am mindful of the fact that in terms of section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case I fix 12 months as non-parole period. This means you are not entitled to parole within 12 months.
12. Twenty eight (28) days to appeal.
    

ORDER

13. I make the following order:
    
    • (a) Accused is hereby sentenced to 20 months' imprisonment and you will serve 12 months of that without being entitled to parole;
      
    • (b) To pay a fine of $200.00 in default 1 month.
      

M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this 14th day of June 2011.