State v Dohra [2015] FJMC 37; Criminal Case 353.2014 (13 March 2015)

IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.353/2014

STATE

vs.

JANG DOHRA

CPL Naidu for the state
The accused present and appeared in person

SENTENCE

[1] The accused is charged with the following offence and plead guilty. The charges read as follows;

First Count

CRIMINAL TRESPASS: Contrary to Section 387 (1) (a) of the Crimes Decree No: 44 of 2009.

JANG DOHRA, on the 27th day of January 2014, at Nasinu in the Central Division, by entered in to the compound of Arun Singh with intent to intimidate Arun Singh a person lawfully in possession of such property.

[2]Above Summary of Facts has been admitted by you before this court on 24/10/2014. The complainant (A1) is Arun Singh, 36 years, Nasese Bus Driver of Muanikoso Squatter Settlement. A2 is Roshni Josephine Singh, 30 years, Police Officer of Muanikoso Squatter Settlement. The accused (B1) is Jang Dohra, 38 years, Process Worker [Flour Mill of Fiji] of Muanikoso Squatter Settlement. On the 27th day of January 2014 at about 1.15am at Muanikoso Squatter Settlement B1 unlawfully entered into the compound of A1 without his consent. A2 was returning from work where she walked up home and at the same time she was talking on the phone. As A2 was about to reach home she notice B1 standing at their garage where their carrier was parked. A2 thought that it was her brother namely Sarwan so she stood there for a while, when she saw this man walking towards the window and back to the carrier. So A2 felt suspicious so she called out one of her neighbour namely Asena which she usually do when she return from work. All of a sudden A2 saw B1 walked towards her whereby she recognized him as they use to call his nick name Bobby and question B1 as to what he is doing at the garage. B1 did not reply and left the scene.A1 over heard the conversation of his wife and A2 which made him annoyed and frustrated since B1 use to do this from the past and they suspected him but today they want to take him to task as he was caught right handed by A2. Matter was reported at Nasinu Police Station whereby WPC 3803 Karalaini was detail to be the Investigation Officer. Accused was then brought in under arrest interviewed under caution and charge for one count Criminal Trespass Contrary to Section 387(a) of the Crimes Decree No. 44 of 009.Accused is bailed for Nasinu Magistrate Court on 25.03.14.

[3] The offence of CRIMINAL TRESPASS has described as follows;

"387. — (1) A person commits a summary offence if he or she—

(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property:

(b) having lawfully entered into or upon such property unlawfully remains there with intent to intimidate, insult or annoy any such person or with intent to commit any offence; or

(c) unlawfully persists in coming or remaining upon such property after being warned not to come thereon or to depart from the property.

Penalty — Imprisonment for 3 months, but if the property upon which the offence is committed is any building, tent or vessel used as a human dwelling, or any building used as a place of worship, or as a place for the custody of property, the offender is liable to imprisonment for 1 year.

(2) The Minister responsible for Fijian affairs may certify that a person or persons are lawfully in possession of native land for the purposes of paragraph (a).

(3) The Minister responsible for Fijian affairs may give such a warning in relation to native land for the purposes of paragraph (c).

(4) A person commits a summary offence if he or she enters by night, and without lawful excuse —

(a) any dwelling-house; or

(b) any verandah or passage attached to a dwelling-house; or

(c) any yard, garden or other land adjacent to a dwelling-house.

Penalty — Imprisonment for 1 year".

[4] The tariff for the offence of criminal trespass is mentioned as 1 – 9 months at the cases of Ravuwai v State [2007] FJ HC55; Buli v State [2011] FJHC 696; HAA 025.2011 (3 November 2011) and HAA 071-077.2007, State v Basilio Nukumata [2011] FJHC 109; HAC 184.2010.

[5] Based on the above statutory provision the element of the offence of criminal trespass could be listed as follows;

I] a person (the accused) entering to a property or remains in a property or persist over a property against the warning not to come or depart from the same which is lawfully possessed by another person

II] with intention of committing an offence or intimidate or annoying

This offence is not against the ownership but the possession.

[6] The actus rea or then physical element of the offence of Criminal Trespass is clear. That is entering or remaining or persisting to a property by accused. But mens rea is doing the said act with intention of annoying, intimidating or committing another crime must be proved. Therefore as in this case merely entering is insufficient to raised chargers except at night time as the burdens shifted to the accused to explain the reasons for entering. Even the cause of action happened in night the bench is on a duty to ascertain the explanation of the accused before conviction.

[7] The accused plead guilty before this court, with free will. In mitigation you said that your 40 years of age, single, employed at FNU and earns $130 per week. You look after your mother. You said "I was just going from my friend's home.it was a squatter and there was no fence."

[8] The accused has agreed on summery of fact tendered by the prosecution. But mentioned that there was no fence as it is a squatter settlement. The accused agreed on the fact which specifically mentioned the time of offence as 1.15 am night, accused has entered to the garage of the complainant. Therefore the accused has to prove that he did not intent to commit any crime or annoy the possessors of the property. But the accused failed to give valid reason or excuse for entering. Further it was suggested that the accused has done the same act in past therefore the complainant got annoyed. You have agreed to the same and which is aggrieved fact.

[9] It was noted by this court that you have gone across squatter settlement where no fence available. Prosecution did not contest this fact. But on the other hand you have gone beyond the limit by entering to the garage of the complainant. To convict a person for this offence with regard to a privet premises it is essential to prove the existence of boundaries of the land such as fences which sufficiently demarcate the land from the rest of the others.

[11] When the possessor has failed on reasonably demarcate his premises it is impossible for others to realise that she or she entering to a property possessed by other. Therefore it is incorrect in law of charging and convicting a person whom has gone across a land like squatter which is belongs to government and the possession of the same has not legally given the complainant. But if the complainant had legal possession or the entering happened at night it is possible to press charge under this section.

[12]Therefore this court based on the plea of guilty convict the accused for the 01 count of criminal trespass.

[13] This court picked 6 months as starting point of sentencing and reduced 2 moths for early plea. Now it is 4 months and for the aggravated fact I add 1 month. Now it is 5 months and for the other mitigation this court suspends the 5 months imprisonment for 2 years. If the accused convicted for the similar offence which committed at the 2 years suspended period this sentence will be activated and this will run consecutively to next sentence. Further the accused must pay $ 100 fine and in default 10 days imprisonment will be applicable.
[14] 28 days to appeal

On 13th March 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate