State v Kaci [2018] FJMC 66; Criminal Case 248 of 2014 (13 July 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 248/2014

STATE

V

JOJI KACI

For the Prosecution : Cpl Ghandi

The accused : In person

Date of Sentence: 13^th of July 2018

SENTENCE

1. JOJI KACI, you were convicted after a hearing to one count of Burglary contrary to section 312(1) of the Crimes Act No 44 of 2009(“Crimes Act”), one count of Damaging Property contrary to section 369 of the Crimes Act, 2 counts of Serious Assault contrary to section 277(b) of the Crimes Act and one count of Resisting Arrest contrary to section 277(b) of the Crimes Act.
2. During the hearing the following facts were proven by the Prosecution.
3. On 07^th May 2014 early in the morning the accused broke and entered in to M Chandra Industrial Ware house with the intention to steal from there. He damaged the locks and the office door when he committed this break in. When the watch man and the PC Qio tried to arrest the accused, he assaulted them with a pinch bar and also resisted the arrest of PC Qio .
4. The maximum penalty for Burglary under the Crimes Act is 13 years imprisonment.
   
5. 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).

6. Maximum sentence for Damaging Property is 02 years imprisonment and in Singh v State [2014] FJHC 191; HAA024.2013S (21 March 2014) the court held that the tariff is from 6 to 18 months.
7. The penalty for Serious Assault is 05 years imprisonment and the tariff is 6-9 months imprisonment (State v Batiratu [2012] FJHC 864; HAR001.2012).
8. Resisting arrest is punishable by 5 years imprisonment. The tariff is between 6-12 months imprisonment (Hicks v State [2011] FJHC 455; HAA018.2011 (19 August 2011).
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 offence, I select 18 months as starting point of the offence of Burglary which would be the base sentence in this case.
11. You targeted a ware house in the early morning and had a pinch bar in your possession. I consider these as aggravating factors and add 06 months to reach 24 months imprisonment.
12. When given chance to mitigate, you submitted that you did not commit these offences. This shows even at this stage you are not prepared to take responsibility for your offences and also not remorseful. You also failed to submit any personal mitigating factors.
13. You have previous convictions and hence not entitle for discounts for your past good behavior.
14. You were in remand for this case for nearly 05 months and this is deducted pursuant to section 24 of the Sentencing and Penalties Act to reach 19 months imprisonment.
15. You are already serving an 11 years 06 months imprisonment that is imposed by the Ba court and hence there is no need to consider suspending this sentence.
16. Accordingly I sentenced you to serve 19 months imprisonment to be concurrent with your sentence you are already serving.
17. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate