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State v Usman [2012] FJMC 301; Criminal Case 1013.12 (16 November 2012)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 1013/2012

THE STATE

–v-

MOHAMMED USMAN

For the State: WPC Fisher
For the Accused: In Person

SENTENCE

1. MOHAMMED USMAN, you have pleaded Guilty to one count of CRIMINAL TRESPASS: contrary to section 387 (1) (a) of the Crimes Decree No.44 of 2009 and one count of ATTEMPTED THEFT contrary to section 44 and 291 (1) of the Crimes Decree No.44 of 2009 and the Particulars of offence is as follows;

First Count

"On the 23rd day of July, 2012 at Suva in the Southern Division, entered the Embassy of Micronesia in the possession of Mataiasi Qimaqima with the intention to steal from Mataiasi Qimaqima a person lawfully in possession of such property."

Second Count

"On the 23rd day of July, 2012 at Suva in the Central Division, attempted to steal a National Electric fan valued at $92.00, the property of the Embassy of Micronesia."

2. I found you guilty for both offence consequent upon your "plea of guilty' to the charges and the Summary of the Facts was outlined to you by the prosecution and you have freely admitted the same in the open Court.

3. You were convicted of the charge on your own pleas of guilty for both counts.

First Count

"On the 23rd July, 2012 at about 4.00pm at the Embassy of Micronesia, Lot 37, Loftus Street, Suva, Mataiasi Qimaqima [PW-1] Caretaker opened the Guest Room and left the floor opened before he took some tools to their tool room. One Mohammed Usman [Accused] 49 years, ice cream seller of Lot 24, Malau Place, Newtown was walking along Loftus Street, Suva. The [Accused] entered the Quest Room of the Embassy of Micronesia situated at Lot 37, Loftus Street, Suva with intention to steal 1 x electric fan."

Second Count

"On 23rd July, 2012 at about 4.00pm, embassy of Micronesia, Lot 37, Loftus Street, Suva, Mohammed Usman [Accused] 49 years, ice cream seller of Lot 24, Malau Place, Newtown was walking along Loftus Street, Suva. The [Accused] removed the whole face of the electric fan, to take it home. The [Accused] was in the process of packing the stolen items in his bag when he was arrested by [PW-1], the Caretaker informed the Management and the [Accused] was referred to police. The [Accused] was interviewed under caution and he admitted that he wanted to steal the face of that electric fan and to take it home to fix his own fan at home."

4. Law

Count 1

Section 387-(1) (a) reads; A person commits a summary offence if he or she-

(a) Enters into or upon property in the possession of another with intent to commit an offence or

To intimidate or annoy any person lawfully in possession of such property:

Maximum penalty for the offence of Criminal Trespass is Imprisonment for 3 months, but if the property upon which the offence is committed is any building, tent or vessel used as a human dwelling, or any building used as a place of worship, or as a place for the custody of property, the offender is liable to imprisonment for 1 year.

The tariff for the offence of criminal trespass is 1 – 9 months. (Ravuwai v State [2007] FJ HC55; Buli v State [2011] FJHC 696; HAA 025.2011 (3 November 2011) and HAA 071-077.2007, State v Basilio Nukumata [2011] FJHC 109; HAC 184.2010)

Count Two

Section 44. of the Crimes Decree No.44 of 2009 reads as follows:

" A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) Subject to sub-section (7), for the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted

(4) A person may be found guilty even if—

(a) committing the offence attempted is impossible; or

(b) the person who actually committed the offence attempted is found not guilty.

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(8) It is not an offence to attempt to commit an offence against section 45 (complicity and common purpose), section 49 (conspiracy to commit an offence) or the offence of conspiracy to defraud."

And Section 291. (1) the Decree reads "A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property."

Offence of theft carries a maximum sentence of 10 years imprisonment.

The Tariff

It was held in Tikoitoga v State (2008, FJHC 44, HAM 088 2007) The Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vatunalaba (2010, FJHC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small.

5. Mitigating Factors

I consider following mitigating factors which were brought before me in your oral mitigation submission seeking a non custodial sentence. That you are;

49 years of age, widow with 02 kids and have to look after them, an ice cream seller and earns $100 a week, remorseful, sole bread winner of your family, seek lenient sentence, promises not to re-offend,

6. Sentence

In the light of Sentencing Guidelines under section 4 (1) and (2) and General Sentencing Provisions under section 15(3) ) of the Sentencing and Penalties Decree consider an appropriate sentences on you.

I note that you have pleaded guilty at the first available opportunity. I also note that complainant did not suffer any loss. I have also considered your mitigation and personal background. You have shown signs of remorse. Considering the circumstances of this case, I Sentence you pursuant to Section 15 (g) of the Sentencing and Penalties Decree as follows for Count 1 as follows.

MOHAMMED USMAN, your conviction in this matter will stand for the next 06 months. You are ordered to enter into a bond for the sum of $500 to be bound over to this Court for the period of 06 months( 16-11-12 to 16-05-13) to keep the peace and be of good behaviour for the, offence of CRIMINAL TRESPASS contrary to section 387 (1) (a) of the Crimes Decree No.44 of 2009.

If you honour this bond then at the end of the bond period of 06months you will be discharged and you retain your clean record. The bond will be explained to you as well as the consequences of any breach.

Considering all the circumstances of this case, for the 2nd count, I pick 09 months as a starting point for your sentence. There are no any special aggravating factors as your offence constitutes the elements of the offence. In considering your early guilty plea, I reduce 03 months. I further reduce 03 months for the mitigating factors. You have two live previous convictions, therefore you do not entitle for further deductions for your previous clear records. Now your sentence stands for 03 months.

In all the circumstances of this case, a sentence of imprisonment is not warranted. Wherefore I am of a view that you should be given another chance to reform yourself away from a custodial sentence. Accordingly, I sentence you 03 months imprisonment period suspended for 01 year for the offence of attempted theft contrary to section 44 and section 291(1) of Crime Decree No 44 of 2009.

In pursuant to section 28 of the Sentencing and Penalties Decree, if you commit any crime during suspended and found guilty by the court you are liable to be charge and prosecute for an offence

28 days to appeal

--------------------------
Lakshika Fernando
Resident Magistrate

On this 16th day of November 2012.