State v Young [2016] FJMC 84; Criminal Case 211.2016 (13 July 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 211/16

STATE

-v-

ILIESA VICTOR YOUNG

SENTENCE

INTRODUCTION AND CHARGE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

COUNT ONE

BURGLARY: Contrary to Section 312(1) of the Crimes Decree No. 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ILIESA VICTOR YOUNG on the 29th day of December 2015 and the 30th day of December 2015 at Vatuwaqa in the Central Division entered the porch of Mindra Sami Rao a trespasser with intent to steal therein.

COUNT TWO

THEFT: Contrary to Section 291(1) of the Crimes Decree No. 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ILIESA VICTOR YOUNG on the 29th day of December 2015 and the 30th day of December 2015 at Vatuwaqa in the Central Division dishonestly appropriated (stole) 1 x Makita drill valued at $400.00. Makita circular saw valued at $800.00, 1 x power tech Hilti drill valued at $400.00, 1 x Inco Circular Saw valued at $89.00 all to the total value of $1689.00, the property of Mandra Sami Rao with intention of permanently depriving Mandra Sami Rao of the said property.

SUMMARY OF FACTS

2] Summary of facts that you have admitted revealed that;

I) Between the 29th day of December 2015 and the 30th day of December 2015 you entered the porch of Mandra Sami Rao as a trespasser anddishonestly appropriated (stole) 1 x Makita drill valued at $400.00, x Makita circular saw valued at $800.00, 1 x power tech Hilti drill valued at $400.00, 1 x Inco circular saw valued at $89.00 all to the total value of $1689.00, the property of said Mandra Sami Rao with intention of permanently depriving him of the said property.

II) It was further revealed that after PW2 a worker gathered some information about the theft you voluntarily handed over 1 x Makita drill valued at $400.00, 1 x Power Tech Hilti Drill valued at $400.00, x Inco Circular Saw valued at $89.00 to PW2.

MAXIMUM SENTENCE

3] COUNT ONE

In terms of Section 312 of the Crimes Decree the maximum penalty for this offence is 13years imprisonment

COUNT TWO

In terms of Section 291 of the Crimes Decree the maximum penalty for this offence is 10 years imprisonment

TARIFF

4] FOR COUNT ONE

In State v Mucunabitu[2010] FJHC 151; HAC 017.2010 (15 April 2010) it was held that the accepted tariff is 18 months to 3 years for Burglary

FOR COUNT TWO

Following sentencing principles were established in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012)

(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

5] No aggravating factor

MITIGATING FACTORS

6] Followingfactors were submitted in mitigation of your sentence in the open court.

1. Early guilty plea
2. 21 years of age
3. earn $1000 per week
4. You voluntarily returned the goods that you stole.
5. Promise not to reoffend
   

CONCLUSION

7] I shall now proceed to consider your sentence to be consistent with the above factors.

For the 1st count I pick 27 months as the starting point and for the 2nd count I pick 3 months as the starting point.

8] Since you have pleaded guilty at the first opportunity, in view of the decision in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 (following Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005) your imprisonment for both counts should be reduced by one third. Accordingly your sentence for the first count reaches 9 months and 2 months for the second count.

9] You have one previous conviction for theft reported in 2015.This is a similar offence to the second count in this case and the lapse of time between the previous conviction and the date on which you have committed this offence is nearly five weeks. You have breached the conditions of suspended sentence and not learnt any lesson from the previous suspended sentence. Accordingly I am of the view that you do not deserve for a suspended sentence for the offence of theft. Therefore you are not entitled to the credit for the good character that a first offender is entitled to.

10] However you have no previous conviction for burglary.You have voluntarily returned the goods to the complainant as well. I am of the view that these are valid grounds for this court to consider a suspended sentence for the 1^st count. Therefore the 9 months imprisonment for burglary is suspended for 5 years.

If you commit any offence punishable by prison sentence during the next 5years you can be charged under section 28 of the Sentencing and Penalties Decree.

SUMMARY OF THE SENTENCE

FOR COUNT ONE; 9 months imprisonment suspended for 5 years

FOR COUNT TWO; 2 months imprisonment

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

13/7/2016