State v Nukunawa [2012] FJHC 1217; HAC008.2012 (13 July 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 008 OF 2012

BETWEEN:

STATE

AND:

JOELI NUKUNAWA

Counsel: Ms. S. Kiran for State

Accused in Person

Date of Sentence: 13th July, 2012

SENTENCE

1. The Accused above named is charged with one count of Burglary, one count of Theft and one count of Criminal Trespass punishable under Section 312 (1), Section 291 and 387 (1) (a) of the Crimes Decree respectively.
   
2. The Accused pleaded guilty to all 3 charges leveled against him and admitted to the summary of facts filed by the State Counsel.
   
3. On the 2nd January 2012 the Accused together with an unknown person used pinch bar and broke into the house of Ms. Ranjani, a Customs Officer at Simla, Lautoka and removed $7950 worth of jewelleries, camera, mobile phones, wrist watches and other items. No goods were recovered.
   

The Accused had admitted to the Police and showed them how he gained access to the house. He also admitted that he committed this offence whilst escaped from the Prison.

4. Convinced with the plea of the Accused being unequivocal the Court found him guilty as charged and convicted him accordingly.
   

Law

5. Section 312 (1) of Crimes Decree 44 of 2009 prescribes maximum penalty as 13 years imprisonment.
   
6. Section 291 (1) of Crimes Decree provides imprisonment up to 10 years.
   
7. Section 387 of Crimes Decree prescribes maximum sentence as 1 year imprisonment.
   

Tariff

8. Tariff for the offence of Burglary was discussed in many cases. In Navitalai Seru v The State Crim. App. No. 84/05 the Court accepted the tariff is between 2 – 3 years imprisonment.
   
9. Tariff for the offence of Theft was accepted as 2 months to 9 months in Niudamu v The State (2011) FJHC 661; HAA 028.2011.
   
10. In Buli v The State (2011) FJHC 696; HAA 025.2011 tariff for the offence of Criminal Trespass was accepted as between 1 to 9 months.
    
11. Considering the nature of the offence I commence your sentence as follows:
    
    1. For the offence of Burglary – 2 years imprisonment.
       
    2. Theft – 7 months.
       
    100. Criminal Trespass – 7 months.
         
12. All 3 offences were committed in the same course of the transaction hence I order all sentence to run concurrently.
    
13. Aggravating factors:
    
    1. Use of weapon to break into the house;
       
    2. Offended whilst escaping from the Prison;
       
    100. Offence committed with another;
         
    4. Appears to be well planned and executed;
       
    5. None of the stolen items were recovered.
       

Considering all I increase your sentence by 6 months. Now your sentence is 2½ years imprisonment.

14. Mitigating circumstances:
    
    1. You have pleaded guilty at early stage of the case;
       
    2. You claim you are remorseful;
       
    100. You are 21 years old and looking after your grandparents;
         
    4. Period in remand custody.
       

Considering your mitigating circumstances I reduce your sentence by 1 year. Now your sentence is 1½ years.

15. Learned State Counsel brings to my notice that you have committed this offence during a period of suspended sentence. I am not considering it as an aggravating factor, but I am not in a position to consider part of the present sentence to be suspended. Hence you will be serving 18 months imprisonment immediately.
    
16. The Prosecution is advised to take steps to activate the suspended sentence in CF 421/2011 as per the provisions of Criminal Procedures Decree.
    
17. Since you have pleaded guilty at early stage I consider Section 18 of the Sentencing and Penalties Decree and refuse to impose a minimum non parole period. Your release will be governed by the Rules and regulations of the Prison authorities.
    
18. You are sentenced to 18 months imprisonment.
    
19. You have 30 days to appeal to Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
13th July 2012

Solicitors: The Office of the Director of Public Prosecution for State

Accused in Person