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State v Samat [2013] FJMC 37; Criminal Case 1311.2012 (25 January 2013)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI

CRIMINAL CASE NO: 1311/12

STATE

V

NAFEEZ SAMAT

Cpl. Chand for the prosecution
Accused in person

Date of Sentence: 25.01. 2013.

SENTENCE

1. You, NAFEEZ SAMAT, are charged with one count of burglary, contrary to section 312 (1) (a) of the Crimes Decree and one count of Theft contrary to section 291 (1) of the Crimes Decree.
   
2. Burglary is an indictable offence which is also a summary offence pursuant to section 312 of the Crimes Decree. When explained about election you elected the trial to be taken by this court.
   
3. You had pleaded guilty to the charges and admitted summary of facts submitted by the prosecution. I have reviewed the facts against the particulars of the charges laid in the information by the prosecution against you, and I am satisfied that they support the essential ingredients of the charges. I therefore convict you as charged on both counts.
   
4. The outline of facts admitted by you confirms that you broke and entered into the house one Adrianna Asena Pepetiko of Lot2 Fasa Av, Namaka, Nadi and stole from therein 1x Sony brand laptop ($3000.00), 1x Canon Brand Digital Camera ($1000.00) and 1x Black Flight bag ($100.00) all to the total value of $4100.00.
   
5. On that night the complainant was out to Denarau Island and from there went to Lautoka. Upon return the complainant found out that the garage door was open and discovered those items were stolen. You were later arrested and all items except camera were recovered.
   
6. A person commits an indictable offence (which is triable summarily) if he or she enters or remain in a building as a trespasser, with intent to commit theft of a particular item of property in the building, according to section 312 of the Crimes Decree.
   
7. Aggravating factors for burglary: premeditation, home invasion and total disrespect of the property right of the complainant and law. for theft: total lack of respect towards property right of the complainant and the law and loss caused to the complainant.
   
8. Guilty plea and remorse are your mitigations. You referred me to your family background in your mitigation. Also stated that you will not re-offend. You are 22 years old and single.
   
9. You had admitted one live conviction for theft in 2010 where proceedings were adjourned for 5 years on the condition that you do not re-offend.
   
10. I cannot take your previous conviction as an aggravating factor, however it may be relevant to set a higher starting point.
    
11. The offence of burglary carries a maximum penalty of imprisonment for 13 years.
    
12. Justice Paul Medical in the case of State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010) set 3 years starting point for burglary offences, stating which should be the accepted tariff for domestic burglary.
    
13. Given this,in your case for burglary I take 3 years imprisonment as my starting point. I add 9 months to reflect the above aggravating features. You pleaded guilty to the charges in first available instance hence you are entitled to a full 1/3 discount for your guilty plea. Hence for you early guilty plea I deduct 15 months. You are not entitled to any discount for your previous good character in which you have one live conviction for similar charge. However, I discount another 6 months to reflect your mitigation. I discount further 1 month for the period spent in remand. Your final sentence for burglary is 23 months imprisonment.
    
14. The offence of theft carries a maximum penalty of 10 years imprisonment pursuant to section 291 of the Crimes Decree.
    
15. The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
    
    1. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490).
       
    2. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.
       
    3. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.
       
16. I therefore, taking all into my account, in your case I fix your sentence at 12 months imprisonment for the offence of theft.
    
17. You must serve these sentences concurrently with each other in view of the totality principle and the offences had been committed in the same series. Hence, in total you are to serve 23 months imprisonment.
    
18. You had failed to observe the condition imposed on you court by committing this offence while a conditional discharge was in operation You deserve to be punished for the offences you had committed. The sentence must deter you and other likeminded.
    
19. 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 your case taking all the circumstances into my account decline to set a non-parole period.
    
20. You have 28 day to appeal.
    

ORDER

21. I make the following order:
    

(a) You are hereby sentenced to 23 months' imprisonment.

............................................
M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 25th day of January 2013.