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State v Nakini - Sentence [2012] FJHC 1154; HAC50.2012 (8 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 50 OF 2012

BETWEEN:

STATE

AND:

SAIMONE NAKINI
[1st Accused]

TIMOCI NAGONEQA
[2nd Accused]

Counsel : Mr. T. Qalinauci for State
Both Accused Persons in Person

Hearing : 5th June, 2012
Date of Sentence : 8th June, 2012

SENTENCE

1. The Accused Persons above named were charged with one Count of Aggravated Burglary and one Count of Theft.

2. When the case was mentioned to take plea both Accused Persons pleaded guilty to both charges and admitted to the summary of facts submitted by the State Counsel.

3. The Summary of Facts is re-produced for easy reference.

"Count No. 1

AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Decree Number 44 of 2009.

On the 19th day of January, 2012, at Tuvavatu in Ra in the Western Division, Saimone Nakini (B1) and Timoci Nagoneqa (B2) at around 10 am left their village of Naboutolu Ra for Mark Mahen Kumar's home (complainant) in Tuvavatu Settlement, Ra. Upon arrival at Mark Mahen Kumar's home, Saimone Nakini (B1) and Timoci Nagoneqa (B2) found out that the Complainant's home was vacant and decided to break into the Complainant's home to steal from within. Saimone Nakini (B1) and Timoci Nagoneqa (B2) entered into the home of Mark Mahen Kumar (PW1) by opening the windows and jumping in.

THEFT: Contrary to Section 291 (1) of the Crimes Decree Number 44 of 2009

On 19th of January 2012 at about 7 am, the Complainant and his de-facto partner left their home in Tuvavatu, Ba to visit the Complainant's mum who was in Rakiraki Hospital. At around 10 am on the same day, Saimone Nakini (B1) and Timoci Nagoneqa (B2) left their village of Naboutolu, Ra on foot for Mark Mahen Kumar (PW1's) home. Upon arrival at PW1's home, Saimone Nakini (B1) and Timoci Nagoneqa (B2) found out that there was no one in Mark Mahen Kumar's (PW1) home. Upon knowing that the Complainant's home was vacant at the time, B1 and B2 decided to break into the said home and steal from within. B1 and B2 entered PW1's home through the windows and whilst inside PW1's home B1 and B2 stole from within the following items:

1. 1 Kawasaki brand brush cutter valued at $800.00;
2. 1 Modyl TV set valued at $400.00;
3. 2 Spray Tank valued at $200.00; and
4. 1 Digging Fork valued at $80.00.
   

The total value of items stolen by B1 and B2 belonging to Mark Mahen Kumar (PW1) is $1480.00.

At around 9 pm on the same day, PW1 received a call from his neighbor one Mr Abdul that his home was broken into thus PW1 and his de-facto wife returned to Tuvatuva Ra. Upon arrival PW1 noticed that the above listed items were missing and reported the matter to Police.

On 09th February 2012, PW1 received a call from the Rakiraki Police Station to identify items recovered through Police Investigations on his said complainant on 19th January 2012. PW1 identified all of the recovered items as his property and confirmed that all items listed above which was stolen from his home were all recovered. The said recovered items are now in the custody of Rakiraki Police Station.

Both B1 and B2 were interviewed under caution at the Ra Police Station and both admitted to the alleged offending. Both were charged for one count each of Aggravated Burglary contrary to section 313 (1)(a) of the Crimes Decree No. 44 of 2009 and one count each of Theft both contrary to section 29 (1) of the Crimes Decree No. 44 of 2009.

Both B1 and B2 are first offenders and have no previous convictions."

4. Section 313 (1) of the Crimes Decree prescribes 17 years imprisonment as maximum sentence for the offence of Aggravated burglary.

5. Section 291 (1) of the Crimes Decree provides 10 years as maximum imprisonment for the offence of Theft.

6. Considering the tariff for the offence of Aggravated burglary our Court held the tariff in between 18 months to 3 years. State v Buliruarua (1010) FJHC 384.

7. In Waisale Vakarauvanua v State (2004) FJHC 116. HAA 0051. J. 2004S the Court held the tariff in between 2 to 9 months imprisonment for the offence of Theft.

8. Considering the nature of the offence I commence your sentence at 2 years for the offence of Aggravated burglary.

9. For the offence of theft I commence your sentence at 6 months imprisonment.

10. Considering the nature of the offence both have committed in the same course of transactions hence the Court orders both sentence to run concurrently.

11. State has not submitted any aggravating factors.

12. Mitigating circumstances:

1. Both are first offenders;
   
2. You have pleaded guilty at very early stage of the case;
   

100. Both are remorseful;
     

4. All the items stolen were recovered.
   

Considering all above mitigating circumstances I reduce your sentence by 1 year. Now your sentence is 1 year imprisonment.

13. Both of you plead to give a non custodial sentence.

14. State Counsel submitted in her sentencing submission that both Accused Persons were young and 1st offenders therefore they may be given a suspended sentence.

15. Considering the fact that both Accused Persons are young 1st offenders and they have pleaded guilty at very early stage of the trial further all the items were recovered therefore the Court considers a lenient sentence.

16. I act under Section 26 of the Sentencing & Penalties Decree and suspend part of your sentence. 9 months of your sentence will be suspended for a period of 2 years.

17. Both of you will be serving 3 months imprisonment and the balance 9 months suspended for a period of 2 years. Nature of the suspended sentence is explained.

18. You have 30 days to appeal.

S. Thurairaja
Judge

At Lautoka
8th June 2012

Solicitors : The Office of the Director of Public Prosecution for State
Both Accused are in Person