State v Qalubau [2015] FJMC 144; Criminal Case 432.2016 (18 July 2015)

IN THE MAGISTRATE COURT
SITTING AT NAUSORI

Criminal Case No. 432 of 2016

State

v

Eliki Qalubau

Prosecution : Sgt Rao

Accused : Present – In Person

Sentence

Eliki Qalubau, you elected to tried in this Court. You have two files before this Court. You have pleaded guilty on your own free will after you consulted your counsel. You have also admitted the statement of facts. You are charged with one count of Burglary and one of Theft.

The Law and the Tariffs

Burglary --"Sec 312. — (1) A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building.

Penalty — Imprisonment for 13 years.

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of burglary.

(3) A person commits an indictable offence (which is triable summarily) if he or she —

(a) enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(b) the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more.

Penalty — Imprisonment for 13 years."

Theft

291. — (1) A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.

Penalty — Imprisonment for 10 years.

(2) for the purposes of this Decree an offence against sub-section (1) is to be known as the offence of theft.

The Tariff for Burglary is set out in Tomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender.

The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).

Mitigation

The accused’s mitigation was that he is 30 years old, Married with one child, wife currently pregnant, farmer, earning $80/month.

The Starting Point and Calculation of Sentence

I adopt the tariff for the offences of Burglary as set out here-in. Having noted the nature of offending, the value items, which are personal this Court takes a starting point of 2 years (24 Months) for burglary. This Court gives 6 months discount for your guilty plea. For your mitigation and time spent in custody you get 3 months discount. Your sentence for burglary is 15 months imprisonment.

For theft this Court takes the tariff as between 9 months to 3 years. This Court takes a starting point of 18 months and gives 6 months discount for your guilty plea. For mitigation and time spent in custody you get 3 months. For theft you are to serve 9 months. The Court has also noted that some items were recovered.

This Court notes you not a 1^st offender and for this reason the Court will not suspend your sentence. This Court wants to send out a clear message to all offenders no matter what age that burglary and theft of such nature will lead persons to custodial sentence.

Summary:

Burglary – 15 months imprisonment

Theft – 9 months imprisonment (concurrent)

Any party aggrieved with this sentence has 30 days (from today) to appeal this sentence to the High Court.

Chaitanya Lakshman

Resident Magistrate

18^th July 2015