State v Chand [2017] FJMC 26; Criminal Case 155.2017 (23 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 155/2017

STATE

V

ATISH CHAND

For the Prosecution : Cpl Shaw

The Accused: In person

Date of Sentence : 23^rd of February 2017

SENTENCE

1. ATISH CHAND , 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 and also admitted the summary of facts presented by the prosecution.
   3. According to the facts between 15^th January to 05^th 2017 you entered in to the house of the complainant as a trespasser and stole items to the total value of $2,954.00, the properties of the complainant.
   4. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I 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 Naisilisili v State [2017] FJHC 77; HAA82.2016 (8 February 2017), Justice Madigan further held that a subsequent offence of Theft would attract the sentence from 09 months to 03 years imprisonment.
10. 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".

11. Considering the nature 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.
12. You entered in to the house by forcefully removing the window of the sitting room, thus by damaging the house. This I consider as an aggravating factor and add 06 months to reach 30 months imprisonment.
13. You are not a first offender and hence not entitle for discounts for your character.
14. I consider following as mitigating factors :
    1. Sole bread winner of the family;
    2. Remorseful and promise not to re-offend;
    100. All the stolen items recovered.
15. For all these mitigating factors I deduct 04 months to reach 26 months imprisonment.
16. For pleading guilty at the first available opportunity I deduct 1/3 to reach 18 months imprisonment.
17. Considering all the circumstances, I sentence you to 12 months imprisonment for the count of Theft and as this was committed in one transaction order to be concurrent with the sentence for Burglary.
18. Now I have to consider whether to suspend your sentence. You appeared before me on 13^th April 2016 for a Theft offence and I gave you suspended sentence for that. The main purpose of suspending a sentence is to allow a person to rehabilitate. But instead of that you committed a more serious offences and seeking a chance again. You can’t expect a mercy from a court again when you clearly showed that you are not willing to be a law abiding citizen in this country. Hence a custodial sentence is warranted in this case.
19. ATISH CHAND, I sentenced you to 18 months imprisonment for the Burglary contrary to section 312(1) of the Crimes Decree and 12 months imprisonment for the count of Theft contrary to section 291(1) of the Crimes Decree to be served concurrently.
20. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate