State v Nabuka - Sentence [2019] FJMC 23; Nasinu Criminal Case 160 of 2019 (5 February 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Nasinu Criminal Case No: - 160/2019

STATE

V

TEVITA NABUKA

For the Prosecution : Cpl Ghandi

The accused : In person

Date of Sentence: 05^th of February 2019

SENTENCE

1. TEVITA NABUKA, you pleaded 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 :

On the 15th of January, 2017 at about 0300 hrs one Tevita Nabuka (B-1) 25 yrs Unemployed of Qaranivalu Road, Kalabu entered into the dwelling house of Sam Narayan (A-1) 58 years Businessman of Lot 44 Roshnee place, Makoi and stole the following items, 1 x goodi brand mobile phone valued at $50.00, 1 x guess gent wrist watch valued at $700.00, 1 x guess ladies wrist watch valued at $700, 1 x ever last brand black and white canvas valued at $50.00 and 2 piece gold ring valued at $400.00 all to the total valued at $2,350.00.

On the above date, time and place (A-1) was sleeping with the family when (A-1)’s daughter namely Reenal Ranisha (A-2) 19 years student of lot 44 Roshnee Place, Makoi she saw (B-1) inside the house and shouted “papa papa” “chor chor” (A-1) wake up and noticed the sitting room window was open and the above following items missing from the house.

(A-1) reported the matter to the Police at Nasinu Police Station and investigation was conducted and later (B-1) was arrested and been caution interview with Nasinu Police Station where (B-1) admits the allegation from Q44 to 70. The items was not recovered as (B-1) admits that he used the items. (B-1) was then charge for tow count BURGLARY: Contrary to Section 312 (1) of the Crime Act of 2009. And THEFT: Section 291 (1) of the Crime Act of 2009 (B-1) appearing in custody at Nasinue Magistrate Court on 01/02/19 at 9.00am.

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. In State v Takalaibau - [2018] FJHC 505; HAC154.2018 (15 June 2018) Justice Goundar cited the Brewster 1998 1 Cr App R 220 where Lord Bingham CJ observed : “Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have. The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled. The seriousness of the offence can vary almost infinitely from case to case. It may involve an impulsive act involving an object of little value (reaching through a window to take a bottle of milk, or stealing a can of petrol from an outhouse). At the other end of the spectrum it may involve a professional, planned organisation, directed at objects of high value. Or the offence may be deliberately directed at the elderly, the disabled or the sick; and it may involve repeated burglaries of the same premises. It may sometimes be accompanied by acts of wanton vandalism.”
12. Hence a sentencing court may consider the following grounds as aggravating factors in a domestic burglary :
    1. Considerable loss of properties ;
    2. The properties stolen may have some sentimental value to the owner;
    100. Significant damage done to the property;
    4. There were some planning ;
    5. The owner was present when this was committed;
    6. The offence was committed in the night time.
13. According to the admitted facts this was committed in the early morning and the complainant and his family were sleeping in the home at that time. I consider these as aggravating factors and add 10 months to your aggregate sentence to reach 28 months imprisonment.
14. In mitigation you submitted that you are 25 years old, unemployed and a farmer. You also co-operated with the police investigation which I would deal later in my sentence. But for your young age I deduct 04 months to reach 24 months imprisonment.
15. Since you have previous conviction you are not entitle for discounts for your previous good character.
16. You pleaded guilty at the first available opportunity after admitting to the police also and for that I deduct 1/3 to reach 16 months imprisonment.
17. Now I would consider whether to suspend your sentence.
18. In Hayes (1984) 11 A. Crim R. 187 the Chief Justice, Sir Laurence Street of New South Wales Court of Criminal Appeal, made the following observations:

“The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts. It is, however, the considered view of this Court that the time has come for a hardening in the policy of criminal courts when sentencing for this offence.”

19. With the increase number of home invasions happening in the country and also in Nasinu area, I also find the courts need to give more emphasis to deterrence and the protection of the public .Only in exceptional cases the court may consider non-custodial sentences even for young offenders. The time has come for the courts to hardened their policies and consider the public safety as paramount in dealing with these kinds of offences.
20. Coming back to this case I find that you have committed these offences whilst on a suspended sentence that was imposed on previously by the Nasinu Court. By reoffending you have shown that you are not willing to reform and also a danger to public. Accordingly I find a custodial sentence is warranted for you in this case.
21. TEVITA NABUKA, accordingly I sentenced you to 16 months imprisonment for this charge.
22. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate