State v Sharma [2012] FJHC 1105; HAC005.2012 (15 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: 005 OF 2012

BETWEEN:

STATE

AND:

PRINEET SHARMA
[1st Accused]

EDWARD VEERAN
[2nd Accused]

VICKY VIKASH NARAYAN
[3rd Accused]

Counsel : Mr T. Qalinauci and Ms S. Puamau for State
Mr Kumar for 1st Accused
Mr Gordon for 2nd Accused
3rd Accused in person

Date of Judgment & Sentence : 15th May 2012

JUDGMENT AND SENTENCE

1. The Director of Public Prosecution had preferred the following charges against the Accused persons above named.
   

Count 1

Statement of Offence (a)

CONSPIRACY TO COMMIT THE OFFENCE OF BURGLARY : Contrary to Section 49 and Section 312 (1) of the Crimes Decree, 2009

Particulars of Offence

PRINEET SHARMA, on the 16th day of November 2011 at Lautoka in the Western Division, conspired with EDWARD VEERAN and VICKY VIKASH NARAYAN to enter into the JOLLY GOOD ICE CREAM CONE FACTORY building with intent to commit the theft of particular items of property in the building, namely 2 cartons of ice-cream cones.

Count 2

Statement of Offence

BURGLARY: Contrary to Section 312(1) of the Crimes Decree, 2009

Particulars of Offence (b)

EDWARD VEERAN and VICKY VIKASH NARAYAN on the 16th day of November 2011 at Lautoka in the Western Division, entered into the Jolly Good Ice Cream Cone making factory building with intent to commit the theft of particular items of property in the building, namely 2 cartons of ice-cream cones.

2. When the case was taken up for taking of plea, Accused persons pleaded guilty to the charges and admitted to the summary of facts submitted by the State Counsel.
   
3. The Summary of Facts submitted by the State Counsel is reproduced for easy reference:
   

"Accused 1 Prineet Sharma 21 years, Cone maker of Balawa Street, Lautoka and Accused 2 Edward Veeran, 23 years, Technician of Senibou Lane were employed by Rajesh Patel (PW1) at his Cone factory whereas (Accused3) is employed at Optic Care, the eye centre.

All of them were working for the same owner.

On the 16th day of November 2011, all three accused met at about 1500hrs at Cone Making Factory and they all planned that they will be coming back to the work site after they have reported off duty and they will enter into factory from where they will steal boxes of ice cream cones and will sell it to their customers as Accused 1 and 3 had already made arrangement for selling them.

At about 2100hrs Accused 2 came and picked Accused 3 from his house, they both came down to their work place at Verona Street at Jolly Goods Ice Cream Factory. Accused 1 was jut in the planning and in the afternoon he never came to assist other Accused but his conversation was on with his other work mates.

Accused 2 jumped over the gate and entered the factory from opening the bulk door which was left unlocked by them in the afternoon when they reported off duty.

Accused 3 was on guard duty to see that no one is coming and if he will feel suspicious he will; make signal sound and will inform Accused 2 so they can escape from the crime scene.

Witness 2 who was on duty at the site who was with his brother heard the noise in the factory where he came to see what the sound is about. Witness 2 switched on the light of the factory where he accused 2 hiding inside. He then call the said Accused to come outside where he questioned the Accused what he was doing inside the factory at that very moment.

Accused 2 then had a conversation with witness 2 stating to keep the matter confidential and they will sought it out themselves. Witness 2 then ran to the Manager and informed him about the incident.

On 17th November 2011 when (PW1) came to the office and checked nothing form the factory had been stolen. He then verbally questioned Accused 1 and 3 where they admitted their planning to come in the evening and steal the ice cream come and sell it.

Matter was reported where all three accused were been brought and questioned regarding the allegation where Accused 1 stated that he was only in the planning and accused 2 and 3 stated that they were in planning and executed their plan and were later caught by PW2 but they did not manage to steal anything."

4. All 3 Accused persons submit to Court that they are first and young offenders, therefore, they move the Court not to enter a conviction but to impose an order for community work.
   
5. Counsel for the 1st Accused submits that the 1st Accused Prineet Sharma is 21 years old and the only charge is under 49 and 312(1) of the Crimes Decree for Conspiracy to Commit Burglary. He is a 1st offender and was not present at the time and place of crime.
   
6. Counsel for the 2nd Accused submits that the 2nd Accused Edward Veeran is 25 years old. Married and has two infant children and claims to be 1st offender.
   
7. The 3rd Accused Vicky Vikash Narayan submits that he is 24 years old and comes from a low income and broken family. He claims he is a first offender.
   
8. Section 15 (1)(e) of the Sentencing and Penalties Decree states as follows:
   

"With or without recording a conviction, make an order for community work to be undertaking in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap 22]."

9. Section 15 (1) (f) of the said decree states as follows:
   

"With or without recording a conviction, order the offender to pay a fine"

10. Section 16 of the said Decree states:
    

"1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including –

1. The nature of the offence;
   
2. The character and past history of the offender; and
   

100. The impact of a conviction on the offender's economic or social well-being and on his or her employment prospects.
     

2. Except as provided by any law, a previous finding of guilt without recording a conviction in the exercise of a power under section 15 must not be taken into consideration for any purpose.

3. A finding of guilt without recoding a conviction in the exercise of a power under section 15-

1. Does not prevent a court form making any other lawful order that is authorized under any law as a consequence of the finding of guilt; and
   
2. Has the same effect as if a conviction had been recorded for the purpose of –
   
   • (i) Appeals against sentence;
     
   • (ii) Proceedings for variation or breach of a sentence; and
     
   • (iii) Proceedings against the offender for a subsequent offence"
     

11. Now I consider Section 4(1) of the Sentencing and Penalties Decree
    

The only purposes for which sentencing may be imposed by a court

are-

1. To punish offenders to an extent and in a manner which is just in all the circumstances;
   
2. To protect the community form offenders;
   

100. To establish or other persons from committing offences of the same or similar nature;
     

4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences;
   
6. Any combination of these purposes.
   

12. Section 4(2) of the Decree states as follows:
    

In sentencing offenders;

1. The maximum penalty prescribed for the offence;
   
2. Current sentencing practice and the terms of any applicable guideline judgment;
   

100. The nature and gravity of the particular offence;
     

4. The offenders culpability and degree of responsibility for the offence;
   
5. The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;
   
6. Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
   
7. The conduct of the offender during the trial as an indication of remorse or the lack of remorse;
   
8. Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;
   
9. The offender's previous character;
   
10. the presence of any aggravating or mitigating factor concerning the offender or any other circumstances relevant to the commission of the offence;
    
11. Any matter stated in this decree as being grounds for applying a particular sentencing option.
    

13. Considering the nature of the offence especially the Accused persons had not benefited from the crime and their submissions before the court. I inclined to act under Section 16 of the Sentencing and Penalties Decree.
    
14. Considering all factors especially the Accused person moving the Court that they are willing to undertake Community Work. I proceed to act under Section 15(1)(e) of the Sentencing and Penalties decree.
    
15. All three Accused persons are sentenced to do Community Work without conviction.
    
16. Section 312(1) of prescribes maximum penalties as 13 years imprisonment.
    
17. The Tariff spelled out in State –v- Mucunabitu (2010) FJHC 151 was 18 months to 3 years.
    
18. Considering the aggravating factor
    
    1. Conspired for a period of time
       
19. Considering the mitigating circumstances
    
    1. 1st offender;
       
    2. Young offenders;
       
    100. Pleaded guilty at a very early stage of the case;
         
    4. Unblemished character till this case;
       
    5. Co-operated with Law enforcement agencies;
       
    6. 1st and 2nd Accused spent 2 days in remand;
       
    7. The 3rd Accused spent 6 months in remand due to unable to furnish $200 cash bail bond.
       
20. Section 3 of the Community Work Act 1994 states as follows:
    
    1. Where a person is convicted of an offence punishable by imprisonment, a court may, with the consent of the offender, sentence the offender to community work in accordance with sections 4 and 5 of this Act, for the prescribed number of hours.
       
    2. For the purpose of subsection (1) the prescribed number of hours means, where the offence is punishable by a term of imprisonment;
       
    100. Not exceeding 6 months – not less that n 20 hours nor more than 5 hours; or
    4. Exceeding 6 months but not exceeding 12 months – not less than 20 hours, nor more than 100 hours; or
       
    5. Exceeding 12 months but not exceeding 2 years – not less than 20 hours, nor more 2170 hours; or
       
    6. Exceeding 2 years – not less than 20 hours, nor more than 400 hours.
       
    7. In determining the number of hours of community work to be performed the court shall have regard to whether or not the offender would otherwise have been sentenced to imprisonment.
       
21. Considering all, I impose Community Work under Section 3(2) (c) of the Community Work Act.
    
22. 1st and 2nd Accused Person is hereby ordered to work 192 hours of Community service at the farming projects with the Agriculture officer of Lautoka.
    
23. This 192 hours of work should be completed within a period of 4 months.
    
24. 3rd Accused Vicky Vikash Narayan was in remand for a period of 6 months.
    
25. Considering the period in remand the 3rd Accused is impose of 96 hours community work to be completed within a period of 3 months.
    
26. All 3 Accused persons should report to the Agriculture Officer of Lautoka and he will be in consultation with the accused Persons to prepare the work schedule.
    
27. If any one of the Accused person fail to comply with the work schedule without valid reason the Agriculture officer will report to Court. On receiving his report the Court will reconsider the sentence imposed on them.
    
28. All 3 Accused Persons will furnish a surety for the value of $500 (non cash) each and the case will be mentioned on 04/10/12 at 9.30am.
    
29. Summary of Sentence:
    

1st Accused – 192 hours of Community Work within a period of 4 months

2nd Accused – 192 hours of Community Work within a period of 4 months

3rd Accused – 96 hours of Community Work within a period of 3 months.

30. 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
15th May 2012

Solicitors : The Office of the Director Public Prosecution for State
Young & Associates for the 1st Accused
Gordon & Company for the 2nd Accused
3rd Accused in person