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State v Nadali - Sentence [2015] FJMC 113; Criminal Case 259 - 261.2015 (2 September 2015)

IN THE MAGISTRATE'S COURT AT SAVUSAVU
CRIMINAL JURISDICTION

Criminal Case No. 259,260,261 of 2015

STATE

V

PAULIASI NADALI

Prosecution : Sgt Rinesh
Accused : In Person

Sentence : 2 November 2015

SENTENCE

1. The Accused, Pauliasi Nadali, you are before this court for sentence on criminal cases number 259 of 2015, 260 of 2015, and 261 of 2015. On each case you are being convicted to one count of Burglary and one count of Theft, contrary to sections 312(1) and 291(1) of the Crimes Decree 2009.
   
2. You had waived your rights to counsel on 7 September 2015, and the charges on each case were put to you on 21 September 2015. You pleaded guilty to the charges on each case. I find the plea to be unequivocal.
   
3. The summary of facts for each case was read to you on the same day in which plea was recorded, where you admitted the summary of facts on all the cases and you are convicted as charged in all the three cases.
   
4. The brief summary of facts is that, on case 259 of 2015 on 1 September 2015, the Accused at Nasekawa estate, Savusavu removed three louvers from the bedroom of the victim at about 9am entered the house and removed one ryobi brand angle grinder valued at $275.00, one multimeter valued at $120.00 and one 12 volt tester valued at $25.00 all to the total value of $420.00 the property of Shari Lal. On case 260 of 2015, on 3 September 2015 between 8am to 9am at Nukuloa Settlement, Jerusalemi village, entered into the victim's house as trespasser and stole knap sack bag valued at $29.00 and a pair of earing valued at $19.00 to the total value of $48.00 the property of Isoa Me. On case 261 of 2015, on 2 September 2015 between 8am to 11.40am at Nukuloa settlement, Jerusalemi, Savusavu, entered into the house of the victim as trespasser and stole a nokia mobile phone valued at $100.00 and a Toshiba torch light valued at $69.00 the property of Net Ram.
   
5. The Accused submitted oral mitigation after his admission to the summary of facts. The submission is that he is 48 years old and unemployed, seeking the court forgiveness and promise to be a good citizen.
   
6. The maximum penalty prescribed for Burglary is 13 years imprisonment. The sentencing tariff was set in Mosese Uluicicia v State Criminal Appeal No. HAA 028 of 2014, where sentence ranges from 12 months to 3 years imprisonment. The maximum penalty prescribed for Theft is 10 years imprisonment. The sentencing tariff was set in Vakarauvanua v The State [2004] FJHC 116, for 2 to 9 months for simple theft and 9 months and more for repeated offenders.
   
7. In sentencing, my starting point for Burglary is 2 years. I add one year for the following aggravating factors;-
   
   • (i) Forcefully entered the house by removing window blades.
   • (ii) Unlawfully entered the house when the house is empty.
   • (iii) Unlawfully took the items without the knowledge and permission of the owner.
     
8. That increases your sentence to 3 years. The High Court in the case of Vilimone v State [2008] FJHC 12, recognised that one third of the sentence should be reduce for an early guilty plea. I reduce one year for your early guilty plea. That reduces you sentence to 2 years.
   
9. I also reduce 6 months for the following mitigating factors;-
   
   • (i) Seeking court forgiveness.
   • (ii) Promise to be a good citizen.
     
10. That reduces your sentence to 18 months and it is within the tariff. I noted that you were in remand for about 2 months. In Bavoro v State [2013] FJHC 1, the court recognised that appropriate reduction in the sentence to reflect the remand period could be made under section 24 of the Sentencing and Penalties Decree No. 42 of 2009. I will further reduce 2 months and your final sentence for Burglary is 16 months imprisonment.
    
11. In compliance with the "one transaction rule" imposed by the Supreme Court in Wong Kam Hong v The State (unreported) Crim App No. CAV 0002 of 2013 (23 Oct 2003), I impose 6 months imprisonment as your sentence for the count of Theft. Your final sentence are;-
    
    • (i) Burglary - 16 months imprisonment.
    • (ii) Theft – 6 months imprisonment.
      
12. The final sentence for the Accused on the three cases are as follows;- Criminal Case No. 259 of 2015
    
    • (i) Burglary – 16 months imprisonment.
    • (ii) Theft – 6 months imprisonment.

Criminal Case No. 260 of 2015

(i) Burglary – 16 months imprisonment.
(ii) Theft – 6 months imprisonment.

Criminal Case No. 261 of 2015

(i) Burglary – 16 months imprisonment.

(ii) Theft – 6 months imprisonment.

The sentences for all the three cases are to run concurrently with a non parole period of 12 months.

28 days to appeal.

.........................................
Cama M. Tuberi
RESIDENT MAGISTRATE