State v Matai - Sentence [2018] FJMC 112; Criminal Case 183 of 2018 (20 July 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 183 - 2018

STATE
-v-
RUSIATE MATAI

For Prosecution: WPC Chand [ Police Prosecution ]

Accused : In person, waived right to counsel

Date of Sentence: 20^th day of July 2018

SENTENCE

1. RUSIATE MATAI, you have pleaded guilty to the following charge:
   

First Count

Statement of Offence

BURGLARY: Contrary to section 312 (1) of the Crimes Act of 2009.

Particulars of Offence

RUSIATE MATAI, between the 26th day of May, 2018 and 27^th May, 2018 at Korovou, Tavua in the Western Division entered into the shop of MAHENDRA SINGH as a trespasser with intent to steal therein.

Second Count

Statement of Offence

BURGLARY: Contrary to section 291 (1) of the Crimes Act of 2009.

Particulars of Offence

RUSIATE MATAI between the 26th day of May, 2018 and 27^th May, 2018 at Korovou, Tavua in the Western Division stole a 20 packet of Benson and Hedges 10s cigarettes valued at $134.00 and $200.00 cash all to the total value of $334.00 the property of MAHENDRA SINGH.

2. The first count is to be tried in the High Court but only upon your election can it be tried in the Magistrates’ Court. You elected on the 4^th of June 2018 that your case be tried in the Magistrates’ Court and that is the reason why your case remains here.
   
3. I am satisfied that your guilty plea to both the counts is voluntary and that you understand the consequences of your plea.
   
4. I have found you guilty of both counts accordingly.
   
5. You admitted the facts which reveal that you were drinking with some others. You then entered the victim’s shop by forcing open the wooden window which was at the back of the shop. You then stole cash and cigarettes the properties particularised in the charge which is valued at $334.00. The matter was reported later to police by the victim in the morning after he discovered the items missing.
   
6. You were questioned by police almost a week later after you were arrested. When you were questioned by police in relation to the incident you admitted being drunk and entered into the shop. You denied entering through the back but you said that you went into the shop through the front door after pulling the door. You took the items and returned to your group of friends and drank beer. The money for the carton of beer was bought with the money you took from the shop. You have used all the cigarettes. You said that you entered the shop because you were really drunk.
   
7. You have nil previous convictions.
   
8. In your mitigation you sought forgiveness. You want to pay back the money you stole or the value of the things you stole. You are 34 years old, a carpenter and you support your wife and 3 children.
   
9. You have been in remand for approximately 12 days and another approximately 2 days in police custody after being arrested.
   

MAXIMUM SENTENCE

10. The maximum sentence a court can impose for burglary is 13 years imprisonment.
    
11. The maximum punishment for theft is 10 years imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

12. The sentencing tariff for burglary is between 12 months to 3 years imprisonment [ Paula Bete v State Criminal Appeal Number HAA 84 of 2016 ( 2^nd May 2017 ) ] .
    
13. The sentencing tariff for theft is as follows [ 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 t 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.

AGGREGATE SENTENCE

14. Section 17 of the Sentencing and Penalties Act 2009 allows me to impose an aggregate or combined sentence if the offences are founded on the same facts or is part of a series of offences of a similar nature.
    
15. The two counts you have been convicted of are founded on the same facts and therefore I will impose an aggregate or combined sentence in your case.
    

STARTING POINT

16. Based on the circumstance of the case, I select a starting point of 16 months imprisonment which is equivalent to 448 days imprisonment.
    

AGGRAVATING FEATURES

17. I don’t see any aggravating feature in your case.
    
18. I will not increase your sentence therefore.
    

MITIGATION

19. Your mitigation was not compelling.
    
20. You have offered to pay back the victim but yet, you have not taken any steps to compensate the victim since committing this offence in May 2018.
    
21. If you really cared about your children, you would not have done what you did. You stole money and cigarettes and then used the money to buy more alcohol.
    
22. However, you have no previous conviction and I will classify you as a person of good history.
    
23. I will only decrease your sentence by 2 weeks or 14 days.
    
24. Your current sentence is 15 months and 2 weeks.
    

GUILTY EARLY

25. I accept that your guilty plea is early and I reduce your sentence by 6 months and 2 weeks because of this.
    
26. Your sentence at moment is now 9 months which is equivalent to 252 days imprisonment.
    

TIME SPENT IN CUSTODY

27. I must further reduce your sentence for the time you have spent in remand/custody and this is 14 days.
    
28. Your aggregate sentence now is 8 months and 2 weeks or 238 days imprisonment.
    

Sentence

29. I can suspend your sentence whether in whole or in part pursuant to section 26 ( 1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009 as long as your sentence is below 2 years imprisonment.
    
30. Considering the circumstance of the case, your own circumstance and the need for deterrence, I’m inclined to only suspend your sentence in part.
    
31. You will spend another 2 weeks or 14 days in prison which is effective immediately.
    
32. The remainder of your 8 months or 224 days imprisonment will be suspended for 3 years.
    
33. If you commit any other offence in the next 3 years, the remaining 8 months imprisonment or 224 days may be activated.
    

[ suspended sentence explained to the defendant ]

SUMMARY

34. For the count of burglary and theft, I impose an aggregate or combined sentence on you.
    
35. Your aggregate sentence is 8 months and 2 weeks or 238 days imprisonment.
    
36. I only suspend your sentence in part.
    
37. You are to serve 2 weeks or 14 days imprisonment, effective immediately.
    
38. The remaining 8 months or 224 days imprisonment will be held in suspension for the next 3 years.
    

28 days to appeal.

....................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at Tavua this 20^th day of July, 2018.