State v Takai [2016] FJMC 179; Criminal Case 1569.2016 (20 September 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1569/2016

STATE

V

JOSEFA TAKAI

For the Prosecution : WPC Fisher

The Accused : In person

Date of Sentence : 20^th of September 2016

SENTENCE

1. JOSEFA TAKAI , you were charged with one count of Burglary, contrary to section 312(1) of the Crimes Decree No 44 of 2009 and one count of Theft ,contrary to section 291(1) of the Crimes Decree No 44 of 2009.
   2. You pleaded guilty for this charge on yesterday and also admitted the summary of facts presented by the prosecution.
   3. According to the facts whilst the complainant was away in Suva, you broke in to her home and stole various electrical items to the total value of $1000.00. Apart from Android tablet all the other items were recovered and you also cooperated with the police with the investigation.
   4. I am satisfied that your plea was voluntarily and unequivocal and convict you for this charge.
5. The maximum penalty for Burglary is 13 years imprisonment.
6. The tariff for this offence is between 18 months to 3 years ( Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002).
7. The maximum penalty for Theft is 10 years imprisonment.
8. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said :

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

9. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

10. Considering the gravity of offending and your culpability, I select 24 months as the starting point for the Burglary which would be the base sentence in this case.
11. Apart from facts which subsume elements of the offence, I do not find any aggravating factors and would not enhance your sentence.
12. In your mitigation you submitted the following :
    1. Young offender(20 years old);
    2. First offender;
    100. Reconciled with the complainant ;
    4. Remorseful and promise not to re-offend;
    5. Most of the stolen items recovered.
13. For all these mitigating factors I deduct 04 months to reach 20 months imprisonment.
14. For pleading guilty at the first available opportunity I deduct 1/3 to reach 14 months imprisonment.
15. Considering all the circumstances, I sentence you to 06 months imprisonment for the count of Theft and as this was committed in one transaction order to be concurrent with the sentence for Burglary.
16. As observed in Laisiasa Koroivuki v the State(supra) if the final sentence is below or higher than the tariff the court needs to give the reason. Even though the sentence for Burglary is below the accepted tariff, I have come to this sentence based on the mitigating factors and early guilty plea of the accused.
17. Now I have to consider whether to suspend your sentence. You are a young offender as well as first offender. You cooperated with the police and also pleaded guilty at the first available opportunity.
18. Hence the main purpose of this sentence is to allow the accused a chance to rehabilitate (section 4(1) (d) of the Sentencing and Penalties Decree).
19. JOSEFA TAKAI, this court sentenced you to 14 months imprisonment for the Burglary contrary to section 312(1) of the Crimes Decree and 06 months imprisonment for the count of Theft contrary to section 291(1) of the Crimes Decree to be served concurrently and this sentence will be suspended for 03 years.
20. If you commit any offences during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
21. Further you have to pay $3500.00 as compensation to the complainant.
22. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate