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State v Kustel [2017] FJMC 4; Criminal Case 1698.2016 (26 January 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: -1698/2016

STATE

V

FILIPE JOHN KUSTEL

Counsel : Ms.S.Tivao for the State
Ms.S.Ratu(LAC) for the Accused

Date of Sentence: 26^th of January 2017

SENTENCE

1. FILIPE JOHN KUSTEL, you were charged with one count of Aggravated Burglary contrary to Section 313(1)(a) of the Crimes Decree and one count of Theft contrary to section 291(1) of the Crimes Decree.
2. You pleaded guilty and admitted the summary of facts presented by the State on 28^th December 2016.
3. According to facts on 24^th September 2016 you with another entered in to the dwelling home of the complainant as trespassers and stole 3xcanvass valued at $200.00 and 1xdessert boot valued at $100.00, the properties of the complainant.
4. I am satisfied that you pleaded guilty on your own free will after understanding the consequences and therefore convict you for this charge.
5. Maximum penalty for the offence of Aggravated Burglary is 17 years imprisonment. The accepted tariff is between 18 months and 03 years as highlighted by the court in Niudamu v State FJHC 661; HAA 028.2011(20 October 2011) .
6. The prescribed penalty for the Theft id 10 years imprisonment and the tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said :

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

7. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.

8. Considering objective seriousness of the offending, I select 02 years as the starting point for Aggravated Burglary offence.
9. You damaged the house by removing louver blades and these were committed in the middle of the night. I consider these as aggravating factors and add 10 months to reach 34 months imprisonment.
10. In mitigation submission your counsel submitted that you are 19 years old, single and seeking forgiveness from the court of your behavior on that day. You have no previous convictions. For these I deduct 07 months to reach 27 months imprisonment.
11. Having got the proper legal advice you pleaded guilty early without wasting the court time and resources and giving full credit I deduct 1/3 to reach 18 months imprisonment.
12. Considering all the circumstances I sentenced you to 04 months imprisonment to the Theft count to be served concurrent with the 1^st count.
13. Considering the young age, past good behavior of the accused and his remorse as shown through early guilty plea in my view a suspended sentence is most appropriate in this case to allow him to rehabilitate.
14. FILIPE JOHN KUSTEL, I sentenced you to 18 months imprisonment for the offence of Aggravated Burglary and 04 months imprisonment for the offence of Theft and suspend this sentence for 03 years.
15. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Decree.
16. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate, Suva