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State v Qaqanivalu [2017] FJMC 59; Criminal Case 1076.2015 (2 May 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1076/2015

(EJ 51/2015)

STATE

V

TEVITA QAQANIVALU

For the Prosecution : Mr.R.Kumar (ODPP)

The accused : In person

Date of Sentence : 02^nd of May 2017

SENTENCE

1. TEVITA QAQANIVALU, you were charged with another for one count of Aggravated Burglary contrary to section 313(1) of the Crimes Decree (“Decree”) No 44 of 2009 and one count of Theft contrary to section 291(1) of the Decree.
2. After a trial this court convicted you for one count of Burglary, contrary to section 312(1) of the Decree and one count of Theft.
3. The Prosecution proved beyond reasonable doubt that between 08^th and 09^th of September 2015 you entered in to the dwelling house of Ryan Mendrana as a trespasser and stole his properties which included laptops, bag, some monies and other items. Apart from the bag other items were not recovered.
4. The maximum penalty for Burglary under the Decree is 13 years imprisonment.
   
5. The tariff for this offence is between 18 months to 3 years. Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002.
6. The maximum penalty for Theft is 10 years imprisonment.
7. In Jone Saukilagini [2005]FJHC 13 her Ladyship Justice Shameem held that “the tariff for simple larceny on a first conviction is from two to nine months. In cases of larceny of large amount of money sentence of 18 months to three years have been upheld by the High Court”
8. Considering the nature of offending, I select 26 months imprisonment as starting point for Burglary which would be the base sentence.
9. Aggravating factors are this was committed in the night; the victim was in the home at that time and damage caused to the home (cutting burglar bars). For these I add 14 months to reach 40 months for the first count.
10. When I gave you the opportunity to present your mitigation, you submitted that you would not mitigate. At that time I warned you the consequences, but you did not listen. Hence I find there are no mitigating factors in your favor to give any discounts.
11. Further you are not a first offender and not entitle for discount for your character also.
12. But you have been in remand for this case for nearly 06 months and pursuant to section 24 of the Sentencing and Penalties Decree I deduct that period to reach 34 months imprisonment.
13. Considering your past convictions for similar offences, I sentence you to 18 months for the Theft count to be served concurrent.
14. With the increase numbers of unwanted home invasions public in this country are living in fear. They have to employ various methods to protect their properties using money and resources. In this case even these methods (burglar bars) did not stop you from committing these offences. In my view you are a threat to the public in this country and need to be given this long custodial sentence to protect the community.
15. TEVITA QAQANIVALU, I sentence you to 34 months imprisonment for this charge to be served concurrent with your other sentences you are presently serving.
16. Since this court is exercising the extended jurisdiction of the High Court, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate