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State v Baleitavua [2013] FJMC 219; Criminal Case 138.2012 (30 May 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No: - 138/2012

STATE

V

LEMEKI BALEITAVUA

For Prosecution : - Sgt. Lenaitasi
Accused : - Mr. Tawake from the Legal Aid

SENTENCE

1. LEMEKI BALEITAVUA, you were charged for the offence of Burglary, contrary to section 312(1) of the Crimes Decree No 44 of 2009 as first count and for the offence of Theft contrary to section 291 of the Crimes Decree No 44 of 2009 as second count.
   
2. Burglary is an indictable offence (which is triable summarily) and you elected Magistrate Court.
   
3. You pleaded guilty for both counts on 13 Aug 2012. Later the prosecution amended the charge and when the charge was again read you applied for the legal aid. Therefore the Court granted you to get the Legal Aid.
   
4. On 16 April 2013 you pleaded guilty for the both counts and admitted the summary of facts too.
   
5. According to the summary of facts both these offences were committed on 26 April 2012 at Pacific Harbor, Navua. On that day you entered in to the complainant's house as a trespasser and stole following items, all to the total value of $4200.00. The police arrested you and recovered only the laptop.
   
   1. Silver MacBRook Laptop
   2. White Nano IPOD
   3. Black Nano IPOD
   4. Silver canon Camera
   5. Black Nokia 1100 phone
   6. Black LE phone
      
6. This court is satisfied that your plea was made voluntarily and convicts you for both counts.
   

LAW AND TARIFF

7. The maximum penalty for Burglary is 13 years imprisonment.
   
8. The maximum penalty for Theft is 10 years imprisonment.
   
9. In Tomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender.
   
10. In William Prasad V State [2010] AAM 1/10 Ruling 12 February 2010 Byrne AP held that the tariff for simple larceny on first conviction is 2-9 months; on a second conviction, sentence in excess of 9 months and in cases of a large amount of money, 1 ½ years to 3 years.
    
11. After considering the summary of facts in this case I select 18 months imprisonment as starting point for the first count and 12 months for the second count.
    

AGGRAVATING FACTORS

12. For Burglary I find no aggravating factors. For Theft value of the stolen property will be an aggravating factor and I add 05 months to reach 17 months for the second count.
    

MITIGATING FACTORS

13. Mitigating factors are you are married, your wife is 06 months pregnant, sole breadwinner, you seek forgiveness from the Court, remorseful. For these I deduct 04 months from both counts.
    
14. Since you did not plead guilty at the first available opportunity you are not entitled for 1/3 reduction. But you need to be given credit for not going for a hearing and for that another 05 months will be deducted from both counts.
    
15. You are not a first offender and therefore not entitled for any discounts for your past behavior.
    
16. Now your final sentence would be 09 months for the first count and 08 months for the second count.
    
17. Section 26(2) (b) of the Sentencing and Penalties Decree gives power to this Court to suspend a sentence below 02 years.
    
18. You are not a first offender. You were shown and admitted your previous convictions. From that I note that most of your convictions are for similar kind of offences. Also in C.F. 691/2010 you were sentenced to 18 months imprisonment starting from 02/05/2011 and as soon as you got out you committed this offences.
    
19. The people should be able to feel secure in home and should be able to travel without worrying about their properties. Your sentence should be a lesson to other people also and would make them think again before they commit offences like these. Therefore this Court will not suspend your sentence.
    
20. Accordingly you are sentenced to 09 months imprisonment for Burglary and 08 months imprisonment for Theft to be run concurrently.
    
21. 28 days to appeal.
    

30 MAY 2013

H.S.P. Somaratne
Resident Magistrate, Navua