State v Baleiwariki [2019] FJMC 41; Criminal Case 1105 of 2018 (16 April 2019)

IN THE MAGISTRATE’S COURT AT LAUTOKA, FIJI

CRIMINAL CASE NO. 1105/18

STATE

V.

PITA BALEIWARIKI

Counsel: CPL Devi on behalf DPP

Ms Vulimainadave K. (LAC) for Accused

SENTENCE

1. Pita Baleiwariki, you are charged with the following two counts;
   

COUNT 1

Burglary: - Contrary to section 312(1) (a) of the Crimes Act

No.44 of 2009

COUNT 2

Theft: - Contrary to section 291(1) of the Crimes Act of 2009

2. You pled guilty for the counts on your own free will and accord. You then admitted summary of fact read over and explained to you. Since summary of facts are sufficient to prove the elements of the charges, court convicted you for the counts.
   
3. Summary of facts revealed that on 05^th December 2018 at 15, Tukani Street, Lautoka, you broke in to restaurantthe complainant’sandstoletheitems
   

described in summary of facts. Having reported the matter on the following date and going through the CCTV footages during investigation, you were arrested and caution interviewed whereby you admitted the allegation and accordingly you were charged.

STATE v. PITA BALEIWARIKI

4. The maximum penalty for Burglary is 13 years as of Crimes Act No.44 of 2009. As per the High Court judgment in Autiko Vuli V State; HAA 53 of 2016 (23/01/2017) the most appropriate tariff for the offence of Burglary is between 12 months to 03 years.
   
5. The maximum penalty for theft is 10 years of imprisonment as of Sentencing and Penalties Act 2009
   

However, tariff for the theft, range from 04 months to 03 years of imprisonment on a first conviction as per Waqa v State [2015] FJHC 729;

HAA017.2015 (5 October 2015)

6. In Maharaj v State [2011] FJHC 373; HAA014.2011(L) (7 July 2011) justice Madigan states as follows in his paragraph [15]:
   

“It is now accepted that a starting aggravating and mitigating features reaching a final sentence. This will

be done on the more serious (or "base") offence and sentences for other offences will be made concurrent, consecutive or partly concurrent to this "base". It is not current practice to add the same aggravating features to every offence that he is sentencing for as the Magistrate has done in this case with the theft offence. By doing so, it means that the convict is being punished twice or more for what the

sentencing tribunal regards as aggrava

7. Considering the prescribed tariffs and in line with Maharaj v. State (supra) I am
   

of the view that out of two countsBurglary“” is the more serious choose it to be the “base”Consideringoffencetherelative to de seriousness of other surrounding circumstances, I choose your starting point

to be 24 months of imprisonment.

8. I see no aggravating factors to this case. In mitigating your counsel submitted that;
   

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STATE v. PITA BALEIWARIKI

• You are 21 years old married person
  
• You were a like layer who earned around $250 per week
  
• You have cooperated with the police in admitting the allegation
  
• You are remorseful of the act and seek forgiveness
  
• You apologise and promise not to reoffend
  
• You seek forgiveness of the court and seek a lenient sentence
  

Court also takes into consideration that you have several previous convictions of similar nature yet you tendered an early guilty plea.

9. Considering the mitigation, I reduce 3 months from your sentence. That brings your interim sentence down to 21 months of imprisonment. As per the
   

Ratubalavu v State [2009] FJHC 199; HAA063.2008 (10 September 2009) I deduct another 1/3 for your early guilty plea.

Now your interim sentence is 14 months for the count of “Bur

10. Now I deal with your second count. Consider the relative seriousness of your
    

count of “Burglary” I choose the starti aggravating and mitigation factors alre “Burglary”, I will not applyyouranysentenceadjustmentsTheft”.for“ t

Your sentence for Theftthe” isthereforecount12 monthsof“of imprisonment.

11. Considering the 'totalityatallthese theory”offenceshavebeenand the committed in the same transaction, I order all sentences to run concurrent to
    

each other.

Therefore, the final effective sentence on both counts shall be 14 months of imprisonment term.

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STATE v. PITA BALEIWARIKI

12. Setting my mind to the Sec. 26 of the Sentencing and Penalties Act, I now consider the power of this court to suspend your sentence since it is less than 02 years. As per the Deo v The State [2005] FJCA 62 court shall require to look for special circumstances to justify a suspending of a sentence.
    
13. You promptly pled guilty. You cooperated with police and remorseful of your action. Section 15(3) read with section 04 of Sentencing and Penalties Act provides that, imprisonment should be regarded as the sanction of last resort. Court also finds that you have number of previous convictions of similar nature within 10 years. Thus you have not learnt your lesson and have not taken the advantage of suspended sentences given to you.
    
14. These conflicting interests need to be balanced along with the interest of justice at large. In the case of State v Nadolo; HAC143.10 (23 November 2012) Hon. Justice Priyantha Nawana J has stated that;
    

“Section 4 of the Decreeas onbeen founded'Sentenci on the jurisprudential principle of 'balancing competing interests' of

the offender, the victim and the society at large. (State v Tilalevu [2010] FJHC 258 HAC 81 of 2010; 20.07.2010)

It is, therefore, of paramount importance for any sentence to reflect court's bounden duty of protecting the community and its unhesitant approach of denouncing the commission of the offence within the prescribed parameters under the law. This can be manifested only by

deterring the offenders and others who tempt to commit crime

15. In the light of above circumstances, I am of the view that partly suspension of the sentence would serve the both ends of justice and punish you achieving the purposes of sub-sections (a) (c) and (d) of section 04 of the Sentencing and Penalties Act.
    
16. Accordingly, I suspend 06 months of your sentence for a period of 5 years. You shall serve the remaining 08 months of the sentence in custody
    

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STATE v. PITA BALEIWARIKI

17. If you commit any crime during the suspended period and found guilty by the court you are liable to be charged and prosecuted for an offence pursuant to section 28 of the Sentencing and Penalties Act.
    
18. 28 days to appeal
    

Bandula Gunaratne

Resident Magistrate

At Lautoka

16^th April 2019

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