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State v Naivalu [2012] FJMC 268; Criminal Case 291.2009 (12 October 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: - 291/2009

STATE

V

MOSESE NAIVALU

For Prosecution : - Miss. Dharshani Kumar from DPP
Accused : - In person

SENTENCE

1. You MOSESE NAIVALU, were charged for the offence of, Criminal Trespass contrary s. 197(2) of the Penal Code. Since the victim is a juvenile I have suppressed her name.
   
2. You waived right to legal counsel and pleaded guilty for the charge on 01/10/2012.
   
3. According to the summary of facts (which you admitted) on 15/11/2009 you entered in to the property of Sainaian Vugona, with the intent to annoy Miss. X.
   
4. I am satisfied that you fully understand the legal effects of your plea and your plea was made voluntarily. Accordingly I convict you for this offence.
   

The Law and Tariff for Criminal Trespass

5. The maximum penalty for the offence is 01 year imprisonment.
   
6. The tariff for this offence is from 01 month-09 months imprisonment. Ravuwai V State [2007] FJHC55, Buli V The State [2011] FJHC 696.
   
7. Upon considering the summary of facts in this case I select 06 months imprisonment as the starting point for your sentence.
   

8 The victim was 14 years old at that time. This will be considered as an aggravating factor and your sentence would be increased by 03 months to reach 09 months imprisonment.

9. I consider following mitigating factors which were brought before me in your mitigation submission.
   
   1. 27 years old
   2. Single
   3. Seeks forgiveness
   4. First offender
      
8. Since you have pleaded guilty in the first available instance you are entitled for a reduction of 1/3 of the total period of imprisonment. (Akili Vilimone v State). There by your sentence stands for 06 months.
   
9. I reduce further 02 month for other mitigating factors to reach the period of 04 months imprisonment.
   
10. I am mindful that this court can suspend a sentence which is below 02 years.
    
11. You are a first offender. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."
    
12. Therefore I believe you should be given a chance to reform. Accordingly I sentence you to 04 months imprisonment and suspend that for 02 years.
    
13. If you commit any crime during the period of 02 and found guilty by the court you can be charged under s. 28 of the Sentencing and Penalties Decree.
    
14. In addition to show this court's disapproval of this kind of action as well as to deter others I order you to pay a fine of $200 (2 penalty unit). In default you have to serve 20 days imprisonment. After you have paid this fine this will be given to the victim as compensation.
    
15. 28 days to appeal
    

12/10/2012

H.S.P.Somaratne
Resident Magistrate, Navua