State v Talai [2017] FJMC 127; Criminal Case 20.2017 (12 October 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 20/2017

STATE

V

SAIMONE TALAI

For the Prosecution : Inspector Jiten

For the accused : Mr.Rattan (LAC)

Date of Sentence : 12^th of October 2017

SENTENCE

1. SAIMONE TALAI , you pleaded guilty to one count of Burglary contrary to section 312(3) (a) of the Crimes Act (“Crimes Act ”) No 44 of 2009 and one count of Theft contrary to section 291(1) of the Crimes Act.
2. You also admitted on 04^th October 2016 around 12pm you entered in the house of the victim by forcefully levering the wooden floor underneath the house by using a piece of pine post. After that you stole 1 x Gold Chain valued at $80.00, assorted jewelries valued at $3000.00, 1x Gold chain with pendant valued at $330.00, 1x three piece silver plated ring valued at $990.00 all to total value of $3,509.00 and $160.00 cash the properties of the victim.
3. I am satisfied that your plea was unequivocal and voluntarily. Accordingly I convict you for these offences.
4. The maximum penalty for Burglary under the Crimes Act is 13 years imprisonment.
   
5. The tariff for this offence is between 18 months to 3 years. Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002.
   
6. The maximum penalty for Theft is 10 years imprisonment.
7. 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.

8. 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".

9. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 24 months as starting point for Burglary which is the base sentence in this case.
10. This was a home invasion in the middle of the night. Further substantial value of properties of the victim was stolen. I consider these as aggravating factors and add 08 months to reach 32 months imprisonment.
11. In mitigation your counsel submitted that you are 22 years old, single and farmer. You have no previous convictions.
12. For these mitigating factors I deduct 06 months to reach 26 months imprisonment.
13. This case was dragging on because you were disputing some amounts in the charge and when the prosecution amended the charge you pleaded guilty on the same day. Hence giving full credit for that I deduct 1/3 to reach 18 months imprisonment.
14. You were in remand for this case for nearly 03 months and pursuant to section 24 of the Sentencing and Penalties Act I consider this as the period of imprisonment that you have already served. Accordingly your sentence is 15 months imprisonment for the Burglary count.
15. Considering all the circumstances I sentenced you to 05 months imprisonment for the Theft count to be served concurrent with the Burglary sentence.
16. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
17. Invading people’s homes and stealing their property is considered as a social evil and the public looks to law enforcement agencies and the courts to protect them from that.
18. But I am mindful there need to be opportunity for you to rehabilitate also considering your young age and past good behavior. To balance the interest of the accused and the public I am of the view that a partly suspended sentence is appropriate in this case.
19. SAIMONE TALAI, I sentence you to 15 months imprisonment for this charge. From that you have to serve 06 months in correction center. The balance 09 months is suspended for 03 years.
20. If you commit any offences during the operational period of your suspended sentence you can be charge under section 28 of the Sentencing and Penalties Act.
21. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate