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State v Waqanibau [2018] FJMC 70; Criminal Case 86 of 2018 (3 July 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT VUNIDAWA

Criminal Case No: - 86/2018

STATE

V

SERAVASIO WAQANIBAU

For the Prosecution : WPC Titilia

The accused : In person

Date of Hearing: 28^th of June 2018

Date of Sentence: 03^rd of July 2018

SENTENCE

1. SERAVASIO WAQANIBAU , you pleaded guilty to one count of Burglary contrary to section 312(1) of the Crimes Act No 44 of 2009(“Crimes Act”) and one count of Theft contrary to section 291(1) (2) of the Crimes Act .
2. You also admitted that between 08^th and 20^th June 2018 whilst complainant was away you broke in to his farm house and stole 1x music box branded Robust valued at $100.00 , the property of the complainant.
3. I am satisfied that your plea was unequivocal and voluntary. Accordingly I convict you for these 2 offences.
4. The maximum penalty for Burglary under the Crimes Act is 13 years imprisonment.
   
5. In State v Mate - Sentence [2018] FJHC 249; HAC76.2018 (3 April 2018) his Lordship Justice Goundar observed :
   

“The maximum penalty prescribed for burglary is 13 years imprisonment. The suggested tariff for burglary is between 1 to 3 years’ imprisonment Waqavanua v State [2011] FJHC 247; HAA013.2011 (6 May 2011); Uluicicia v State [2015] FJHC 61; HAA028.2014 (30 January 2015).

[5] The maximum penalty prescribed for theft is 10 years imprisonment. The tariff depends on the nature of theft, but it can range from 2 months to 3 years imprisonment (State v Saukilagi [2005] FJHC 13; HAC0021X.2004S (27 January 2005)).”

6. Section 17 of the Sentencing and Penalties Act, provides:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

7. The 2 offences you have been convicted are found on same facts and hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act .
8. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) 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. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

9. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 24 months as starting point of your aggregate sentence.
10. There are no aggravating factors and in mitigation I consider that you are 21 years old, single, farmer, first offender and the stolen item was recovered.
11. For these mitigating factors I deduct 04 months to reach 20 months imprisonment.
12. You pleaded guilty early and for that I deduct 1/3 to reach 14 months imprisonment.
13. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
14. You are a young and a first offender and pleaded guilty at the first available opportunity and co-operating with the police with the investigation. Hence I find the main purpose of this sentence is to allow you the chance to rehabilitate.
15. Accordingly I suspend your 14 months imprisonment to 03 years.
16. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Act.
17. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate