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State v Naqau [2012] FJMC 93; Criminal Case 119.2012 (13 March 2012)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT SIGATOKA
WESTERN DIVISION
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 119 of 2012

State

v.

Watisoni Naqau

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : WPC Chanika
Accused : Present.

SENTENCE

Watisoni Naqau you were charged with Burglary and Theft, respectively contrary to Section 321 (1) and 291 (1) of the Crimes Decree 2009.

Count One: The particulars of the offence for burglary is that you, “Watisoni Naqau between the 10th day of March 2012 to 11th March 2012 at Sigatoka in the Western Division entered into the Le Café Restaurant as a trespasser with intent to steal assorted liquor valued at $270.90”

Count Two: The particulars of the offence for Theft is that you, “Watisoni Naqau between the 10th day of March 2012 to 11th March 2012 at Sigatoka in the Western Division dishoenestly appropriated assorted liquor valued at $270.90 the property of Le Café Restaurant with intent to defraud the said Le café Restaurant.”

You waived right to legal counsel and on your own free will pleaded guilty to the charges. The facts were put to you and you admitted the facts. You also agreed that you had previous convictions.

Your mitigation is as follows: “34 years old, married with one issue and sole breadwinner.”

This Court notes that the maximum penalty for burglary and theft under the Crime Decree is 13 years and 10 years imprisonment, respectively.

Count One – Burglary

In State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), Justice Madigan stated that “the maximum offence for burglary under the Penal Code wfe iife imprisonment, with the accepted tariff being two to three years after trial. Under the Crimes Decree 2009 it is now a maximum of 13 years.... I taktartiint of three years, which should be the accepted pted tariftariff for domestic burglary.”

This court for the offence of burglary takes a starting point as 3 years. For the aggravating factor whicludes invasion at night the court adds 1 year. Making it a it a total of 4 years. For your guilty plea and mitigation which is virtually nothing apart from your personal details the Court gives 1 year discount. Your are sentenced to 3 years imprisonment for the 1st count which is burglary.

Count Two – Theft

In State vs Mucunabitu [2010] FJHC 151; HAC017.2010 (15 April 2010) Madigan J, in reference to theft under the new Crimes Decree 2009 stated the following:

"Theft is also a new offence but is akin to the offence of larceny under the old Penal Code. The theft of items during burglary used to be part and parcel of the same offence of housebreaking and larceny, but it is now obviously the intention of the legislature to separate these two elements and to make theft an additional separate offence".

In Chand vs State [2007] FJHC 65; HAA 30.2007 (11 October 2007) Mataitoga J affirmed that the tariff for larceny is in the range of 2 to 3 year imprisonment below:

"Again this was not harsh and excessive sentence, when you consider the tariff for this offence is in the range 2 to 3 year imprisonment. The maximum sentence for this is 10 years for the appellant given his previous conviction for felony".

This Court takes the tariff for theft between 2 to 3 years.

The Court takes 2 ½ years (30 months) as the starting point for this offence. Considering your plea and mitigation the Court gives you 6 months discount. You are sentenced to 2 years (24 months) imprisonment for the 2nd Count. The Court notes that there has been no recovery of the items stolen.

This Court has considered suspending your sentence. This Court will not suspend your sentence as you are not a 1st offender and you have a history of similar offending. The Courts need to protect the community from people like you. A custodial sentence is warranted. As the two offences are related and arise as part and parcel of the same incident the Court will impose a concurrent sentence. If the Court were to impose a consecutive sentence (aggregate) it would amount to 5 years. However for the two offences the Court notes the aggregate and the need to fix a non parole period. The Court noting offences arising as part and parcel of the same incident imposes a concurrent sentence and fixes a non parole period of 2 years.

Watisoni Naqau you are sentenced to 3 years imprisonment for Count One, which is burglary and 2 years for theft, which is count two, with a non-parole period of 2 years.

You are sentenced as follows:

Count One – 3 years imprisonment.

Count Two – 2 years imprisonment.

Non parole period 2 years.

The sentence is to be served concurrently.

28 Days to appeal the sentence.

Chaitanya Lakshman
Resident Magistrate
Sigatoka
13th March 2012