State v Dayal [2012] FJHC 1314; HAC11,14.2012 (30 August 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 11 OF 2012
CRIMINAL CASE NO: HAC 14 OF 2012

BETWEEN:

STATE

AND:

PRAVEEN DAYAL

Counsel : Mr. S. Babitu for the State
Accused – In Person

Date of Sentence : 30th August 2012

SENTENCE

1. There are two cases against the Accused he pleaded guilty and submitted same grounds of mitigation in both cases namely HAC 11 of 2012 and HAC 14 of 2012. Both cases are similar hence both sentence delivered in one Ruling.
   
2. In HAC 11 of 2012 the Director Public Prosecution had preferred the following charges against the Accused Praveen Dayal.
   

First Count

Statement of Offence (a)

THEFT: Contrary to Section 291 (1) of the Crimes Decree No 44 of 2009.

Particulars of Offence (b)

PRAVEEN DAYAL and Others on the 10th day of August 2010 at Namosau, Ba in the Western Division stole $500.00 cash the property of ROMMY NIRAD PRASAD.

3. In HAC 14 of 2012 the Director Public Prosecution had preferred the following charge.
   

FIRST COUNT

Statement of Offence (a)

AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crime Decree No 44 of 2009.

Particulars of Offence (b)

PRAVEEN DAYAL and Others on the 4th day of August 2010 at Valele, Ba in the Western Division entered into the house of MOHAMMED IQBAL as a trespasser with intent to steal items therein.

SECOND COUNT

Statement of Office (a)

THEFT: Contrary to Section 291 of Crime Decree No 44 of 2009.

Particulars of Offence (b)

PRAVEEN DAYAL and OTHERS on the 4th day of August 2010 at Valele, Ba in the Western Division stole 1 chain valued at $800.00, 1 chain and pendant valued at $600.00, 2 pairs of earrings valued at $600.00, 1 diamond ring valued at $400.00, 2 gold rings valued at $3,790.00, cash to a total amount of $500.00, sony camera valued at $2,500, mobile Nokia phone valued at $100.00, cordless electric drill valued at $700.00, 1 drill valued at $500.00, 2 packet BH 10 valued at $10.00, extension cord valued at $40.00, switch box valued at $10.50, 1 torch valued at $30.00, 1 curtain valued at $50.00, 2 packet red cow milk valued at $10.50, 1 bottle sun quick juice valued at $7.00, 1 mate mobile phone valued at $1,500.00, Samsung slide phone valued at $270.00, Digicel phone valued at $20.00, circular saw valued at $40.00, Oakley shoes valued at $300.00, extension lead valued at $50.00, plies valued at $20.00, chisel valued at $20.00, leather sandal valued at $150.00, Maximate valued at $300.00, after shave valued at $10.00, perfume valued at $35.00, all to a total value of $10,307.50 the property of MOHAMMED IQBAL.

4. The Accused pleaded guilty to the charges in HAC 11 of 2012 and 14 of 2012 and admitted to the Summary of Facts.
   
5. In HAC 11 of 2012 the Accused and others on the 10th August 2010 at around 3.00am after cutting the roofing iron and entered the shop/home of Rommy Nirad Prasad and stole $500.00 cash. He was arrested subsequently and charged.
   
6. In HAC 14 of 2012 on the 4th August 2010 the Accused Praveen Dayal and others entered the dwelling house of Mohammed Iqbal and stolen things worth of $10,307.00. After the arrest Accused persons and Police recovered $2,330.50 worth of items.
   
7. This Court is convinced with the Plea of the Accused Praveen Dayal is unequivocal hence he is found guilty and convicted as charged.
   
8. Section 291 of the Crimes Decree prescribes maximum sentence of 10 years imprisonment for the offence of Theft.
   
9. Section 387 (1) prescribes maximum sentence of 3 months for the offence of Criminal Trespass.
   
10. Section 313 prescribes maximum sentence of 17 years imprisonment for the offence of Aggravated Burglary.
    
11. Tariff for the offence of theft is discussed in many cases. Niudamu V The State (2011) FJHC 661 and Chand V State (2007) FJHC 65 it is between 2 months to 3 years.
    
12. Tariff for the offence of Aggravated Burglary was discussed in Tomasi Tuturavesi V State (2002) HAA 86/02S. The Court held it is between 18 months to 3 years imprisonment.
    
13. Considering all factors I commence your sentence as follows:
    
    • (i) HAC 11 of 2012 :- (a) Theft – 9 months imprisonment

(b) Criminal Trespass – 2 months imprisonment

(ii) HAC 14 of 2012: (a) Aggravated Burglary – 2 years imprisonment

(b) Theft - 12 months imprisonment.

14. Since the offence in HAC 11 of 2012 committed in the same course of transaction both sentences will be implemented concurrently.
    
15. Similarly offence in HAC 14 of 2012 was committed in the same course of transaction both sentences will be implemented concurrently.
    
16. Aggravating Factors:
    
    • (a) This was well organized crime;
    • (b) Money and most of the items were not recovered;
    • (c) Offences were committed in the very early hours of the day;
    • (d) No regards to other properties and personal values
      

Considering above aggravating factors I increase your sentence by 4 months. Now your sentence stands as follows:

HAC 11 of 2012 – Theft 13 months

HAC 14 of 2012 - Aggravated Burglary – 2 years 4 months.

17. Mitigating Circumstances:
    
    • (a) Pleaded guilty;
    • (b) Married and wife pregnant;
    • (c) Two depending small children aged 3 years and 18 months;
    • (d) You have followed a rehabilitation and counseling programme at the Prison.
      

Considering your mitigating circumstances your sentence is reduced as follows:

(i) In HAC 11 of 2012 Reduced by 7 months you will be serving 6 months imprisonment.
(ii) In HAC 14 of 2012 Reduced by 13 months now your sentence will be 15 months imprisonment.

18. You submit to Court that you are presently serving a sentence for another offence and you pray these sentences to be implemented concurrent to the present sentence.
    
19. Considering your previous convictions and the nature of the offences you have committed I am unable to accede to your request, anyhow you have pleaded guilty to the charges early and save the time of the Court and you submitted that you will not commit any offence in the future. Considering these factors I make order to implement these two sentences from today.
    
20. You have 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
30th August 2012

Solicitors: The Director Public Prosecution for the State
Accused – Appeared in Person.