State v Bolanimua [2016] FJMC 22; Criminal Case 1974.2015 (29 February 2016)

IN THE MAGISTRATES’ COURT OF FIJI
ATSUVA

Criminal Case No: - 1974/2015

STATE

V

ISIMELI TEVITA BOLANIMUA

For the Prosecution : - PC Shaw
For the Accused : - Ms.S.Prakash(LAC)
Date of Sentence: 29th of February 2016

SENTENCE

1. ISIMELI TEVITA BOLANIMUA, you werechargedin this court to one count of Burglary,contrary to section312(1) of the Crimes Decree No 44 of 2009and one count of Theft contrary tosection 291(1) of the Crimes Decree No 44 of 2009.
   
2. You pleaded guilty to both counts and admitted the summary of facts which shows that on 15th November 2015 at Namadi Heights you broke into the dwelling house of the complainant and stole 1 flat screen TV and one Alcatel One Mobile phone to the total value of $900.00, the properties of the complainant.
   
3. In mitigation submission the learned counsel from the Legal Aid is asking for a non-conviction based on your past good behavior and impact to your future. Therefore I would first consider this application for a non-conviction for the accused.
   
4. In old Penal Code a discharge without a conviction is stated in section 44 and in State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009) his Lordship Justice Goundar summarized the principles in the following manner :
   

“Subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender, or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v IsimeliNeneboto [2002] HAA87/02.In Commissioner of Inland Revenue v AtunaisaBaniDruavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations.”

5. In State v Batiratu [2012] FJHC 864; HAR001.2012 his Lordship Chief Justice Anthony Gates introduced the following guidelines in similar application for a sentencing court and they are as follows:
   

(a)The offender is morally blameless.

(b)Whether only a technical breach in thelaw has occurred.

(c)Whether the offence is of a trivial or minor nature.

(d)Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest.

(e)Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose nominal punishment.

(f)Are there any other extenuating or exceptional circumstances, a rare situation justifying a court showing mercy to an offender.

6. Therefore it appears that a court can consider a non-conviction when an accused is morally blameless or committed a technical breach. Further when the offence is minor or when there are special grounds exist a court may also consider entering a non-conviction.

7. But in the present case the accused has committed 2 serious offences and he is not morally blameless for these offences. In fact the complainant is his uncle which further aggravates these offences. Therefore I do not see any reasons not to enter a conviction. Accordingly I convict you for both counts.

Law and Tariff

8. The maximum penalty for Burglary is 13 years imprisonment.
   
9. The tariff for this offence is between 18 months to 3 years. TomasiTuruturuvesi vThe State [2002] HAA 086 of 2002;
   
10. The maximum penalty for Theft is 10yearsimprisonment.
    
11. 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.

Aggravating Factors

12. You broke in to your uncle's house and stole from there. This shows breach of trust on your part. Further you were drunk at that time.
    

Mitigating Factors

13. Mitigating factors are you are 19 years old, first offender, seeks forgiveness and reconciled with the complainant and one stolen item(TV) has been recovered.
    
14. Considering the gravity of offending I select 20 months for Burglary and 06 months for Theft as starting points and add 6 months for aggravating factors to reach 26 months and 12 months respectively.
    
15. For mitigating factors deduct 04 months to reach 22 months for the 1st count and 08 months for the 2nd count. Pleading guilty at the first available opportunity after getting proper legal advice I give full credit (1/3) to reach 14 months for the 1st count and 06 months for the 2nd count. These were committed in same transaction and therefore I order these two sentences to be concurrent.
    
16. Now I have to consider whether to suspend your sentence. You are a first offender and young offender. You pleaded guilty early and seek forgiveness from the court. I believe these are sufficient grounds to suspend your sentence.
    
17. Accordingly I sentenced you to 14 months imprisonment for the Burglary and 06 months imprisonment for the Theft and these are suspended for 02 years.
    
18. If you commit any offences during next 02 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
19. 28 days to appeal
    

ShageethSomaratne
Resident Magistrate