State v Nacagi [2013] FJMC 21; Criminal Case 3054.2004 (21 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 3054/2004

STATE

V

JONACANI NACAGI

Prosecution: Cpl. Temesi Evo, Sgt Jitendra, Police Prosecutors.

Accused : Appeared in person.

SENTENCE

1. You, Jonacani Nacagi are here today to be sentenced on the 'guilty' plea entered on your own accord and free will, in this Court on 21.07.2004, for committing the following offences,
   
   1. Unlawful Use of a Motor Vehicle – contrary to section 292 of the Penal Code, Act 17.
      
   2. Larceny – contrary to section 259(1) and 262(1) of the Penal Code, Act 17, and
      

Chronology of Events

2. The matter was first called on 26.05.2004 before learned Magistrate Mr.Salesi Temo[ as he was then] to enable you to apply for legal aid assistance. Later on 21.07.2004 you elected a Magistrate's Court trial and pleaded guilty before the learned Magistrate Aminiasi Katonivualiku. Then it was further adjourned on few occasions for your submissions on mitigation. However due to an un-explained reason, the case was not called in the Court till 26.01.2009.
   
3. In 2009 having considered the undue delay in passing the sentence, you applied a stay of proceedings to the High Court. Hon. Justice Gounder by his ruling dated 21.08.2009 turned down the application and further ruled that your plea was unequivocal. Therefore this Court will now proceed to consider the agreed facts of the case.
   

Summary of Facts

4. According to the Summary of Facts tendered by the Prosecution, you had committed these offences on 21.05.2004 at 1 pm in Grantham Road, Suva. The complainant has parked his vehicle along Grantham road and later found that it had been taken away. It was later found abandoned near Suva Fish Market.
   
5. Further it was discovered that a tool box, four speakers, a car stereo and an equaliser of the vehicle had been removed by you. The total value of the items was $1960.
   
6. Later you were arrested and questioned on the offence. You made formal admissions to the alleged offences in your caution interview. The investigators did not recover any of the stolen items.
   
7. The aforesaid Summary of Facts was admitted by you on your own free will. This Court convicts you for the each offence of the charge sheet.
   
8. The maximum punishment for the offence of Unlawful Use of a Motor Vehicle is six months imprisonment. There is no set tariff for the offence. However Hon. Justice Gounder in State v Timoci Delana [2010] FJHC 22 held that 4 months imprisonment is sufficient for an offender.
   
9. The offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, attracts maximum sentence of 10 years of imprisonment.
   

The Tariff for the afore-stated offence 'Larceny' is between six (06) months to twelve months (12) imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)

In the case of Tikoitoga v State [2008] FJHC 44; HAM088.2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

The tariff for 'simple larceny', with a previous conviction of a felony, was held to be over 9 months. (per Shameem J in Vaniqi v State [2008] FJHC 348; HAA080.2008 (12 December 2008)

It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) that the tariff is be at least one year of imprisonment for a first offender of Larceny.

10. Having considered the circumstances of the offence the Court takes four months for its starting point for count 1 and 12 months for count 2.
    
11. Your period of imprisonment remains at its starting points as the court doesn't note any aggravating features of offending.
    

Mitigating Factors

12. I must take into consideration the fact that you did plead guilty, at the earliest opportunity. Full allowance must be made for the early guilty plea. I would discount the terms of imprisonment by one month and 3 months form the respective offences for the timely plea to save Court's time and resources. This will leave your sentences at 3 months and 9 months.
    
13. In mitigation you filed written submissions. Further you addressed the Court by your oral mitigation. Your main concern was that if you have been sentenced immediately following the guilty plea in 2004 you must have served the sentence by now.
    
14. Further you stated that you are a 34 year old. Married with two children. And at present you are a serving prisoner. You are now remorseful for what happened. I deduct a further period of 1 month form count 1 and two months from count 2 for your remorse and other personal circumstances.
    
15. Now your final sentence stands at 2 months for count 1 and 7 months for count 2.
    
16. On record, you have 08 previous convictions. You had been sentenced for similar offences since 1997. Therefore the court does not wish to consider your prior custody period to extend further concession to your sentence under section 24 of the Sentencing and Penalties Decree 2009.
    
17. You Jonacani Nacagi today you are sentenced to 2 months imprisonment for the offence of Unlawful Use of a Motor Vehicle and 7 months imprisonment for the offence of Larceny. And I order to run the two terms concurrently. Further you will serve this sentence concurrent to any other prison terms which you serve at present.
    
18. 28 days to Appeal.
    

Pronounced in open Court

Yohan Liyanage
Resident Magistrate

21st January 2013