IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 143 0F 2010

BETWEEN

STATE
PROSECUTION

AND

JONE NASARA
1st ACCUSED

Counsel: Mr. S Quica – Counsel for State
Accused in person

Date of Trial/Plea: 24 October 2011
Date of Sentencing Submissions: 25 October 2011
Date of Sentence: 31st October 2011

SENTENCE

1.	Jone Nasara, the 1st Accused in the above case (the accused), stood charged for committing offences of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) (a) and 291 (1) respectively of the Crimes Decree No 44 of 2009 (the Decree). 

2.	The accused pleaded guilty to the charges. Court, upon being satisfied that the plea was voluntary and free from duress or influence, convicted the accused on the plea. 

3.	The offence of 'Aggravated Burglary', which is indictable, attracts a punishment of 17 year-term of imprisonment, while the summarily triable offence of 'Theft' mandates a punishment upto a 10 year-term of imprisonment under the Decree.

4.	The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92). 

5.	In State v Mikaele Buliruarua) [2010] FJHC 384, the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Aggravated Burglary' under the Decree. 

6.	I would accordingly adopt the same tariffs for the offences of 'Aggravated Burglary' and of 'Theft' under the Decree in this case.

7.	Facts, as admitted by the accused, revealed that he (the accused) along with two others broke into a pharmacy at Vitogo Parade in Lautoka after breaking the glass-doors with the throw of a brick. As the pharmacy remained unoccupied at the time of the incident around 11.30 in the night of 23 October 2010, the accused along with his companions stole $ 3298 in cash, assorted body-spray and other cosmetics to the value of $ 4041. The three of them had then fled in a van and bought beer to satisfy their drinking quench. 

8.	The act of burglary in this case has crystallized into its aggravated form in view of the fact that the offence was committed by the accused whilst being a member of a gang. There exists no evidence on the use of excessive force or deadly weapons or injury to any person. I, therefore, find no material to constitute any aggravating circumstance/s other than those that are embedded in the offence itself. State, too, on the other hand, did not advance any circumstance as aggravating.

9.	The accused is 21 years of age. He has two previous convictions for offences of 'Larceny' and 'Theft' entered in 2007 and 2010 respectively. He was sentenced to a term of 12 months, suspended for three years with effect from 18 October 2010, pursuant to the conviction for the offence of theft. The offences in this case were committed while the above suspended term was in force; and, whilst on bail for offences of aggravated burglary and theft in Lautoka Magistrate's Court Criminal Case No 85/2010 [HAC 193/2011].

10.	The accused submitted that he was remorseful over the crime; he had learnt his lesson and that he would not reoffend. He submitted that he was on remand for a year since the commission of the offences. He applied for leniency and urged for a suspended sentences to enable him to go home and support his vulnerable family. 

11.	I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No 42 of 2009 (the Sentencing Decree), especially those of the Sections set-out below in order to determine the appropriate sentence.

12.	Section 15 (3) of the Sentencing Decree provides that:

'As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in [the General Sentencing Provisions of the Decree].'

13.	The objectives of sentencing, as found in Section 4 (1) of the Decree, are inter alia to punish offenders to an extent and in a manner, which is just in all the circumstances, to protect the community from offenders; and, to deter offenders or other persons from committing offences of the same or similar nature.

14.	It is, therefore, important for any sentence to reflect court's bounden duty of protecting the community and its (court's) unhesitant approach of denouncing the commission of offences within the prescribed parameters under the law. This can be achieved only by deterring the offenders and others who tempt to commit crime. 

15.	In giving effect to the above legal provisions, I consider it just to order a term of imprisonment of thirty (30) months in respect of the offence of 'Aggravated Burglary'. I reduce the term only by six (06) months for the guilty plea. Although belated, it could be considered as a true display of remorse. 

16.	The accused is not entitled to any discount for the past record in view of his previous convictions for a similar offence of larceny in 2007 and of theft in 2010.

17.	The accused had been on remand for twelve (12) months in connection with these offences. I reduce the above interim term by twelve (12) months to set-off his period of remand.

18.	I, accordingly, sentence the accused to a term of twelve (12) month-imprisonment for the offence of 'Aggravated Burglary'.

19.	As regards the offence of 'Theft', I would take the starting point at a term of imprisonment of twenty four (24) months and increase it by four (04) months on account of the high value of the property. 

20.	I reduce the term by four (04) months for his guilty plea as it demonstrated true repentance. A further reduction of twelve (12) months against his detention on remand for one year.

21.	No any other meaningful mitigation was advanced to secure a further reduction of the sentence.

22.	I, accordingly, sentence the accused to a term of twelve (12) month-imprisonment for the offence of 'Theft'. 

23.	I do not find circumstances in favour of suspending the whole or part of the sentences. The two sentences, however, shall run concurrent to each other. The accused, accordingly, shall serve a period of twelve (12) months in imprisonment. 

24.	The State may consider the breach of previous suspended sentence. 

25.	After considering the provisions in Part III of the Sentencing and Penalties Decree read with Section 22, I determine the accused to be a habitual offender. In the result, this sentence of twelve (12) months should run consecutive to the sentence of twenty four (24) month imprisonment, which was subjected to a non-parole period of eighteen (18) months, in HAC 193/2011; MC Lautoka 85/2011 dated 31 October 2011. 

Priyantha Nawana
Judge

High Court
Lautoka
31 October 2011