State v Khan [2018] FJMC 65; Criminal Case 528 of 2018 (20 July 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 528/2018

STATE

V

AHMAD ALI KHAN

For the Prosecution : WPC Siteri

The accused : In person

Date of Hearing: 20^th of July 2018

Date of Sentence: 20^th of July 2018

SENTENCE

1. AHMAD ALI KHAN, you pleaded guilty this morning to one count of Burglary contrary to section 312(1) of the Crimes Act No 44 of 2009(“Crimes Act”) and one count of Theft contrary to section 291(1) (2) of the Crimes Act .
2. You also admitted the following summary of facts presented by the prosecution:

Between the 3rd day of July, 2018 and the 4th of July, 2018, Lovers Point Restaurant as broken into whereby the following were stolen from therein; $200.00 cash, 1 x 600ml coke valued at $2.40 and 1 x Mother drink valued at $3.10 al to the total value of $205.50.

On 07/07/18, ARVIN BHAWAN (PW-1), 25 years, Businessman of Visama Road, Nausori lodged an official complain of his restaurant being broken into by an unknown person. PW-1) was informed by one William Fung (PW-2), 19 years, Bouzer Attend – Total Service Station of Mokani Village, Bau, Tailevu about the break – in at Lovers Point Restaurant. (PW-2) was on duty at the Total Service Station just directly opposite the Lovers Point Restaurant when he saw Ahmad Ali Khan (Accused), 21 years, Fisherman of Naselai Road, Nausori walked passed him walking towards the said restaurant. (PW-2) asked (Accused) as to where he was going and (Accused) stated that he is going to wait for his boss to give his pay as he used to work at Lovers Point Restaurant (PW-2) was just sitting at the said Service Station when he saw (Accused) climbing out of the front window of Lovers Point Restaurant. (PW-2) then yelled at (Accused) and (Accused) ran towards the steps going down towards Tebara Bakery. (PW-2) then approached (Accused) and saw him counting coins at the steps and also had with him 1 x 600ml coke and 1 x can Mother drink.

On 7/07/18, (PW-2) then went to Lovers Point Restaurant during his break and informed (PW-1) of what happened on the night, between 03/07/18 – 04-07/18.

Enquiries were made for the arrest of (ACC) whereby he was later arrested from his residence. (ACC) was then escorted to Nausori PS whereby he was searched and locked in the cell, Later, (ACC) was interviewed under cautioned whereby he admitted to the allegation in (Q & A: 43-49). (ACC) also refused to exercise his rights (ACC) then was subsequently charged on the following counts;

Count 1: Burglary; Contrary to section 312(1) of the Crimes Act, 2009

Count 2: Theft; Contrary to Section 291 (1) of the Crimes Act, 2009.

3. I am satisfied that your plea was voluntary and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Burglary under the Crimes Act is 13 years imprisonment.
5. The penalty for the Theft is 10 years imprisonment.
   
6. In State v Mate - Sentence [2018] FJHC 249; HAC76.2018 (3 April 2018) his Lordship Justice Goundar observed :
   

“The maximum penalty prescribed for burglary is 13 years imprisonment. The suggested tariff for burglary is between 1 to 3 years’ imprisonment Waqavanua v State [2011] FJHC 247; HAA013.2011 (6 May 2011); Uluicicia v State [2015] FJHC 61; HAA028.2014 (30 January 2015).

[5] The maximum penalty prescribed for theft is 10 years imprisonment. The tariff depends on the nature of theft, but it can range from 2 months to 3 years imprisonment (State v Saukilagi [2005] FJHC 13; HAC0021X.2004S (27 January 2005)).”

7. Section 17 of the Sentencing and Penalties Act, provides:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

8. The offences that you convicted are found on same facts and hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act.
9. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) 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".

10. Considering the above judicial precedents and based on an objective seriousness of offences, I select 18 months as starting point of your aggregate sentence.
11. You targeted a business premises. According to your caution statement you planned this break-in with a person called Samu. This was committed in the night. I consider all these as aggravating factors and add 06 months to your sentence to reach 24 months imprisonment.
12. In mitigation I note that you are 21 years old, single, first offender and seeking forgiveness from the court. For these I deduct 06 months to reach 18 months imprisonment.
13. Without wasting the time and the resources you pleaded guilty early and for that finally I deduct 1/3 to reach 12 months imprisonment.
14. Now I would consider whether to suspend your sentence.
15. His lordship Justice Nawana in State Prosecution v Tilalevu [2010] FJHC 258; HAC081.2010 (20 July 2010), held that:

“I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.”

16. Even though you are a young and a first offender, I do not find any compelling reasons to suspend your sentence. With the increase number of burglaries committed against business premises in the country there need to be harsh sentences irrespective of personal mitigating factors of the offenders to protect the public and denounce the criminal activities.
17. AHMAD ALI KHAN, accordingly you are sentenced to 12 months imprisonment for this charge.
18. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate