State v Nacagi [2013] FJMC 8; Criminal Case 1292.2004 (21 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 1292/2004

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. House Breaking Entering and Larceny – contrary to section 300 (a) of the Penal Code, Act 17, and
      
   2. Unlawful Use of a Motor Vehicle – contrary to section 292 of the Penal Code, Act 17.
      

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 between 01.05.2004 at 11 pm and 02.05.2004 at 5 am in Suva. You had broken entered the house of Mr. Ashok Kumar and stolen a DVD player and a VCD player therein. The total value of the items was $1200.
   
5. Thereafter you obtained the keys of the vehicle registration No ED 525 from the top flat of the same property and unlawfully driven it away. The vehicle was belonged to Mr Vinod Bhai Patel.
   
6. Later the accused was arrested and questioned on the offence. You made formal admissions to the alleged offences in your caution interview. The investigators managed to recover the DVD player which was valued at $850.
   
7. The aforesaid Summary of Facts was admitted by you on your own free will.
   
8. This Court convicts you for the each offence of the charge sheet.
   
9. According to Section 300 (a) of the Penal Code, the Maximum Sentence for the offence of House Breaking and Larceny is fourteen years imprisonment.
   
10. The tariff for housebreaking, entering and larceny is 2 – 3 years imprisonment. Tuibua v State, High Court of Fiji Criminal Appeal No. HAA 77 of 2005 (15 July 2005). Felix Vusonitokalau v The State Crim App No. HAA 056/05.
    
11. 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.
    
12. Having considered the circumstances of the offence the Court takes 3 years for its starting point for count 1 and 4 months for count 2.
    

Aggravating Factors

13. The only notable aggravating feature of the offence is that you have committed these offences during night hours of the day.
    
14. Six months and one month are added for the respective starting points to reflect the aggravating features.
    
15. Your period of imprisonment now stands at 3 ½ years for count 1, and 5 months for count 2.
    

Mitigating Factors

16. 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 12 months and one month for the timely plea to save Court's time and resources.
    
17. This will leave your sentences at 2 ½ years and 4 months.
    
18. 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.
    
19. 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 06 months form count 1 and one month from count 2 for your remorse and other personal circumstances.
    
20. Now your final sentence stands at 2 years for count 1 and 3 months for count 2.
    
21. 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.
    
22. You Jonacani Nacagi today you are sentenced to 2 years imprisonment for the offence of House Breaking Entering and Larceny. Further you are sentenced to 3 months for Unlawful Use of a Motor Vehicle. And I order to run the two terms concurrently.
    
23. You will serve 1 year of the term of count 1 before being eligible for parole. Further you will serve this sentence concurrent to any other terms which you serve at present.
24. 28 days to Appeal.
    

Pronounced in open Court

Yohan Liyanage
Resident Magistrate

21st January 2013