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State v Nadali [2016] FJMC 231; Criminal Case 163.2015 (25 November 2016)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No. 163 of 2015

Criminal Case No. 165 of 2015

STATE

v

PAULIASI NADALI

For the Prosecution : WCPL Qolitabua

For the Accused : In Person

Sentence : 25 November 2016

SENTENCE

1. The Accused, Pauliasi Nadali, you are before this court to be sentenced for Criminal Cases No. 163 and 165 both of 2015. On each case number you are being convicted for one count each of Burglary and one count each of Theft.
   
   2. You pleaded guilty to both the charges in both the case files on 23 March 2016 in the presence of your counsel. I find your plea to be unequivocal.
      
3. The summary of facts for each case was read to you on 29 August 2016 where you admitted to the summary of facts on both the cases and you are convicted as charged in both the cases.
   
4. The brief summary of facts are;-

Case No. 163 of 2015

On 18 April 2015, at Domokavu village Korotasere between 9.00 am to 10.30 am, Setoki Draunibaka (victim) left a whales tooth inside his bag in one of his bedroom and left to his brother’s house which is 100 meters away. He closed the door but did not lock it. The Accused noticed the victim’s house was vacant, the Accused pushed the door, went inside the house and stole the whales tooth valued at $500.00, $20.00 cash, and a torch light valued $20.00, all to the total value of $540.00. Victim returned and saw the door of his house was opened and discovered the items were missing. Matter was reported to the Police, investigation was carried out, Accused was arrested and admitted to the allegation.

Case No. 163 of 2015

On 19 May 2015, between 10.00am to 11.00pm the Accused broke into the dwelling house under the care of Tula Ram (victim) at Naqaqa settlement, Savusavu by cutting the gauze wire netting and remove two louver blades. The Accused entered the house and stole 3 pairs of diving flippers valued at $500.00, a hammer valued at $18.00, a Christmas tree and flicking lights valued $30.00, a rice cooker valued $40.00, 3 diving goggles valued $180.00, 4 snickers valued $60.00, an iron valued $35.00, a carry bag valued $60.00, a black flippers bag valued $55.00, a red bucket valued $2.00, all to the total value of $980.00. Matter was reported, accused was arrested with the stolen items in his possession where he admitted breaking into the house of the victim.

5. The maximum penalty for Burglary is 13 years imprisonment. The 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 for Theft is 10 years imprisonment. The 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.
   
6. The following aggravating factors are;-
   • (i) Forcefully entered the house by breaking the gauze netting and removed the louver blades.
     
   • (ii) Unlawfully entered the house when it was empty.
     
   • (iii) Unlawfully took the items
     
7. The mitigating factors are;-
   
   1. 43 years, married, with 4 children
   2. Seek the court forgiveness
   100. Asking for sentence to run concurrent with his sentence that he is currently serving.
        
8. In sentencing, I will start with Burglary. I pick 2 years as my starting point. I add 1 year for the aggravating factors and that increase your sentence to 3 years. I reduce 6 months for your mitigation and that reduce your sentence to 2 years and 6 months imprisonment. 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 10 months for your early guilty plea and that reduces you sentence to 1 year and 8 months imprisonment.
   
9. 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 imposed 10 months imprisonment as your sentence for the count of Theft.
   
   10. Your final sentence for the two cases are;-
       

Criminal Case No. 163 of 2015

Count 1 - Burglary – 1 year and 8 months imprisonment.

Count 2 - Theft – 10 months imprisonment.

Criminal Case No. 165 of 2015

Count 1 - Burglary – I year and 8 months imprisonment.

Count 2 - Theft – 10 months imprisonment.

11. Sentences for both the cases are to run concurrently and to be served concurrently with the Accused sentence that he is now currently serving.
    

28 days to appeal.

C. M. Tuberi
RESIDENT MAGISTRATE