State v Biu [2016] FJMC 228; Criminal Case 105.2015 (23 November 2016)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No. 105 of 2015

STATE

v

MIKA BIU

For the Prosecution : Ms Elo. W

For the Accused : In Person

Sentence : 23 November 2016

SENTENCE

1. The Accused, Mika Biu, you are before this court to be sentenced after you have been convicted to the charges of Aggravated Burglary and Theft, contrary to sections 313(1) and 291(1) of the Crimes Decree 2009 respectively.
   
2. You waived your rights to counsel on 16 September 2016 and the charges were put to you on the same day where you pleaded guilty to both the charges. I find your plea to be unequivocal.
   
3. The brief summary of facts are;-

“The victim Arunesh Sagal on 26/03/15 closed his restaurant at around 9.30pm. Before heading home that evening with his wife, the victim securely locked his restaurant. At about 2am on 27/03/15 the victim received a call from Kelemedi Qolimaleya, Security Officer at Budget Lodge about a recent break in at his shop. The victim went over to his shop and noticed that his shop had been broken into, food was on the table, the cash register was opened and the till was missing. Items stolen are - $131.00 cash, 3 bottle juice valued at $9.00, and children’s laptop valued at $150.00 with the total value of $290.00. There was no recovery. The Accused was arrested, cautioned interviewed and fully admitted to the allegation.”

4. The summary of facts was read to you in open court and you admitted to the summary of facts and were convicted as charged.
   
5. The maximum penalty for Aggravated Burglary is 17 years imprisonment. The tariff was set in State v Mikaele Buliruarua [ 2010] FJHC 384, and ranges from 18 months to 3 years imprisonment. The maximum penalty for Theft is 10 years imprisonment. The tariff was set in Vakarauvanua v The State [2004] FJHC 116, from 2 to 9 months for simple theft and 9 months and more for repeated offenders.
   
6. In sentencing, my starting point for Aggravated Burglary is 2 years and 3 months.
   
7. The aggravating factors in this case are;-
   • (i) It is a commercial burglary and theft.
   • (ii) Offence committed at night.
   • (iii) Unlawfully broken into the shop.
   • (iv) Unlawfully take the items.
   • (v) Stolen items were not recovered.
     
8. I add 1 year and 4 months for the above aggravating factors and that increases your sentence to 3 years and 7 months.
   
9. You first appeared in court on 30 March 2015 and you pleaded guilty to the charges on 16 September 2016. That was not an early guilty plea but I will reduce your sentence by 6 months to reflect your guilty plea. Your sentence is now reduced to 3 years and 1 month.
   
10. The mitigating factors are;--
    • (i) First offender.

(ii) Young offender.
(iii) Seek court forgiveness.
(iv) Promise not to re-offend.

11. With the above mitigating factors, I reduce your sentence by 1 year and that reduce your sentence to 2 years and 1 month.
    
12. You were in remand for a period of about 5 months. I will further reduce your sentence by 5 months and that reduce your sentence to 1 year and 8 months.
    
13. Both the offences were committed together under one circumstance. In compliance with the “one transaction rule” imposed by the Supreme Court in Wong Kam Hong v The State (unreported) Criminal Appeal No. CAV 0002 of 2013 (23 October 2013), I impose 8 months imprisonment as your sentence for the count of Theft.
    
14. I have drawn my attention to the case of Navin v The State [2006] FJHC 6;

HAA 0148J. 2005S (9 February 2006), where the High Court has provided for

the approach to be taken for young and first offenders. You have been sentence for an indictable offence. In light of the seriousness of the offence you have committed I have decided that suspended sentence is not appropriate in this case.

15. Mika Biu, I will now sentence you as follows;-

Count 1 - Aggravated Burglary – 1 year and 8 months imprisonment.

Count 2 - Theft – 8 months imprisonment.

16. Sentence for both the counts are to be served concurrently.
    

28 days to appeal.

C. M. Tuberi
RESIDENT MAGISTRATE