Nayavarua v The State [2005] FJHC 334; HAA0137.2005L (28 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0137 OF 2005L

JOVESA NAYAVURUA

v.

THE STATE

Appellant in Person
Mr. S. Qica for the State

Date of Hearing: 28 October 2005
Date of Judgment: 28 October 2005

EXTEMPORE JUDGMENT ON APPEAL

The appellant was convicted on his plea of guilty of the following offences at the Tavua Magistrates Court.

FIRST COUNT

Statement of Offence

BURGLARY: Contrary to section 299(a) of the Penal Code, Cap. 17.

Particulars of Offence

JOVESA NAYAVURUA, in the night on the 14^th day of January, 2005 at Tavua in the Western Division broke and entered the dwelling house of another namely SADA SIWAN s/o Subarmani with intent to commit a felony therein, namely Larceny.

SECOND COUNT

Statement of Offence

LARCENY IN A DWELLING HOUSE OF PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to section 270 of the Penal Code, Cap. 17.

Particulars of Offence

JOVESA NAYAVURUA, on the 14^th day of January, 2005 at Tavua in the Western Division stole in the dwelling house of one SADA SIWAN s/o Subarmani, 3 tabua valued $900.00, cash $142.00, canned food valued $70.00 and a bottle of Gordon Gin valued $30.00 to the total value of $1142.00, to value amounting to not less than ten dollars, the property of the said SADA SIWAN s/o Subarmani.

THIRD COUNT

Statement of Offence

BURGLARY: Contrary to section 299 (a) of the Penal Code, Cap. 17.

Particulars of Offence

JOVESA NAYAVURUA, in the night on the 4^th day of February, 2005 at Tavua in the Western Division broke and entered the dwelling house of another namely SADA SIWAN s/o Subarmani with intent to commit a felony therein, namely Larceny.

FOURTH COUNT

Statement of Offence

LARCENY IN A DWELLING HOUSE OF PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to section 270 of the Penal Code, Cap. 17.

Particulars of Offence

JOVESA NAYAVURUA, on the 4^th day of February, 2005 at Tavua in the Western Division stole in the dwelling house of one SADA SIWAN s/o Subarmani, assorted clothes valued $724.00, groceries valued $30.00, 3 kg waka valued $75.00, 1 pair boot valued $100.00, 1 carton Fiji beer valued $30.00, 1 pair gold earring valued $75.00, cosmetics valued $15.00, 2 traveling bags valued $100.00 and a divers torch light valued $75.00 to the total value of $1224.00, to value amounting to not less than ten dollars, the property of the said SADA SIWAN s/o Subarmani.

The facts to which you pleaded guilty were that on the 14^th day of January 2005 between 7.00pm and 11.00pm you broke the main door and entered the house of the complainant at Matalevu, Tavua and stole there from the items detailed in the charge.

On the second occasion on the 4^th February 2005 between 7.30pm and 11.00pm, you once again broke the main door of the same house and stole there from the items detailed in the charge.

On the both occasions the complainant was out of the residence with his wife and upon return, he found that the main door had been broken into and the items details had been stolen.

Both matters after being reported, investigated and you were evading police and ultimately arrested and interviewed under caution when you admitted both the offences.

With the exception of one tabua and one torchlight, no other property was recovered.

You come before the Court with 15 prior convictions for similar offences between 1995 and 2004.

In mitigation before the Learned Magistrate and before the Court, you say you are 31 years of age, you have 2 children, one aged 8 and the other aged 4 and that you seek forgiveness and your parents are aged then they need you care for them. There is nobody else to care for them and that you are remorseful for what you have done. Perhaps the greatest mitigating factor and the fact that goes towards the reduction of your penalty is the fact that you enter a plea of guilty at the first opportunity and you admitted the offence when you were interviewed under caution.

The offence is however aggravated by your planning and by the repetition with which you committed the offence. Failure of goods to be recovered is a further aggravating factor. Madam Justice Shameem in Tomasi Curuvesi v The State – Cr. App. No. HAA 86 of 2002S sets forth the various authorities and concludes that the tariff for house breaking, entering and larceny is between 18 months and 3 years imprisonment.

By your conduct and your prior convictions requires the Court to commence at the top of the tariff. You are indeed entitled to a discount of one-third for your plea of guilty however the aggravating factors in particular your prior record warrant an additional term of imprisonment. Accordingly, the term of imprisonment of 3 years imposed by the Learned Magistrate is in my opinion not manifestly excessive or wrong in principle albeit with that it is perhaps at the top of the range and accordingly, the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
28 October 2005