Baleinamaka v State [2013] FJMC 98; Criminal Case 145.2011 (28 February 2013)

MAGISTRATE'S COURT OF FIJI AT NADI
WESTERN DIVISION AT NADI

CRIMINAL JURISDICTION

CRIMINAL CASE NO.145/11

ISIMELI RATUSALA BALEINAMAKA

VS

THE STATE

WPC Ana for prosecution
Mr D. S. Naidu for Accused.
Sentence: 28. 02. 2013.

SENTENCE

[1] You were convicted on one count of burglary contrary to section 312 (1) of the Crimes Decree No. 44 of 2009.

[2] You on 3 September 2011 broke the window glass of the CAAF Quarters 315F with intent to steal. The Quarter was unoccupied and unfurnished. After breaking you found nothing inside.

[3] Home invasion, total lack of respect the property right of the complainant and the law aggravated the offending.

[4] Your counsel submitted the following in mitigation on your behalf:

1. You are a first offender.
   
2. You are remorseful and have learnt your lesson not to get into trouble with the law again.
   
3. You have been regularly attending your court dates without any default, and compromising your lecture times in order to attend court.
   
4. Since the incident you have stopped consuming alcohol and have disassociated yourself from your friends in the neighbourhood.
   

[5] Your counsel also submitted the following as your personal circumstances:

1. You are student at Fiji National University currently a final year Diploma student in IT and intend to further your Degree in IT also at Fiji National University.
   
2. You are 22 years of age and in the prime youth.
   
3. If given a custodial sentence the family feels that it could affect their residency status at the Novatel Staff Quarters. The family has been residing there for the last 16 years since your mother works at Novatel Hotel.
   
4. You are the first ever in your family to be involved with the law, and seeks the courts indulgence and mercy.
   

[6] Your counsel also told in court that you entered the quarters seeking shelter as it was raining at that time. You had innocently entered the premises with no intention to commit theft hence there was no premeditation.

[7] The offence of burglary carries a maximum penalty of 13 years imprisonment under the Crimes Decree.

[8] The tariff for this offence appears to range from 18 months to 3 years imprisonment.
State v Mikaele Buliruarua [2010] FJHC 384; Tomasi Turuturuvesi v State [2002] HAA 086/02.

[9] You are a first time offender. The offence you had committed is a serious one. However you did not plan to commit this offence. Currently you are a final year Diploma student in IT. If I impose a custodial sentence, that would crush on your future. In your case I have to consider an alternative sentence. I think a community service order would justice in your case.

[10] Pursuant to section 15 (1) (e) of the Sentencing and Penalties Decree sentencing court may order for community service. The section provides:

15.- (1) if a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree-

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

[11] I therefore order that you perform 75 hours of community work at Namaka Primary School, Nadi under the supervision of the Probation Officer Nand/Senior Court officer of the Magistrate' Court, Nadi. Your 75 hours must be performed within 4 months. A report of your performance must be submitted to me after you have served 75 hours. A breach of this order or a failure to perform makes you liable to prosecution under the Community Work Act and/or the cancellation of this sentence. I must warn you that if you fail to perform the work ordered, you are likely to be sentenced for this offence to a period of imprisonment. You must report to the Probation Officer, Nadi/Senior Court Officer of the Magistrate's Court, Nadi within 1 week of this sentence.

M H Mohammed Ajmeer
Resident Magistrate

At Nadi

Dated this 28th day of February 2013.