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State v Nasiga [2012] FJHC 970; HAC31.2012 (21 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 031 OF 2012

BETWEEN:

STATE

AND:

1. LOTE NASIGA
[1st Accused]

2. MELI TUINAKAUVADRA
[2nd Accused]

Ms P. Low for the State
Both Accused Persons Appeared in Person

Date of Hearing : 19th & 20th March, 2012.
Date of Sentence : 21st March, 2012.

SENTENCE

1. The Director of Public Prosecutions preferred following charges against the 1st and 2nd Accused Persons above named.

COUNT 1

Statement of Offence (a)

AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Decree No 44 of 2009

Particulars of Offence (b)

LOTE NASIGA and MELI TUINAKAUVADRA between the 1st day of January 2012 and 31st day of January 2012 at Tavua in the Western Division entered into the SINOHYDRO CORPORATION LIMITED site as a trespasser with the intention to steal therein.

COUNT 2

Statement of Offence (a)

THEFT: Contrary to Section 291(1) of the Crimes Decree No 44 of 2009.

Particulars of Offence (b)

LOTE NASIGA and MELI TUINAKAUVADRA between the 1st day of January 2012 and 31st day of January 2012 at Tavua in the Western Division stole 2 table lights valued at $100, 1 bed sheet valued at $50, 3 packets of toothbrush valued at $9, 6 shampoo valued at $12, 2 shower cream valued at $4, 1 scale valued at $280, 1 bag washing powder valued at $40, 9 note books valued at $35, 1 laptop valued at $2500, 1 deck with remote valued at $200, 1 scissors valued at $5, 1 shifter valued at $15, 3 travelling bags valued at $30 and 1 helmet valued at $30, all to the total value of $3310.00, the property of SINOHYDRO CORPORATION LIMITED.

COUNT 3

Statement of Offence (a)

THEFT: Contrary to Section 291 (1) of the Crimes Decree No 44 of 2009.

Particulars of Offence (b)

LOTE NASIGA and MELI TUINAKAUVADRA between the 1st day of January and 31st day of January 2012 at Tavua in the Western Division stole a bag valued at $200, mobile phone valued at $500, shoes valued at $150 and clothes valued at $500, all to the total value of $1350.00, the property of one ZHANG YONG.

2. When the case was mentioned to take plea 1st and 2nd Accused persons pleaded guilty to both the charges and admitted the Summary of Facts on the following day.

3. The Summary of Facts submitted by the State Counsel states as follows:

"Count 1: AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Decree No 44 of 2009.

Between the 1st day of January 2012 and 31st January 2012, B1 and B2 entered into the SINOHYDRO CORPORATION Limited Nadarivatu site as a trespasser with the intention to steal from the said site.

Count 2: THEFT: Contrary to Section 291 (1) of the Crimes Decree No 44 of 2009.

Between the 1st day of January 2012 and 31st January 2012, B1 and B2 entered into the SINOHYDRO CORPORATION Limited and stole 2 table lights valued at $100, 1 bed sheet valued at $50, 3 packets of toothbrush valued at $9, 6 shampoo valued at $12, 2 shower cream valued at $2, 1 scale valued at $280, 1 bag washing powder valued at $40, 9 Note books valued at $35, 1 Laptop valued at $2500, 1 Deck with remote valued at $200, 1 scissors valued at $5, 1 shifter valued at $15, 3 travelling bags valued at $30 and 1 helmet valued at $30, all to the total value of $3310.00, the property of SINOHYDRO CORPORATION LIMITED.

Count 3: THEFT: Contrary to Section 291 (1) of the Crimes Decree No 44 of 2009.

Between the 1st day of January 2012 and 31st day of January 2012 at Tavua in the Western Division B1 and B2 stole a bag valued at $200, Mobile phone valued at $500, shoes valued at $150 and clothes valued at $500, all to the total value of $1350.00, the property of one ZHANG YONG."

4. After carefully considering the Plea of the 1st and the 2nd Accused to be unequivocal this Court found both of them are guilty for aggravated burglary and theft accordingly both of them are convicted under Section 313(1) (a) and Section 291(1) (c) of the Crimes Decree respectively.

5. 1st Accused Lote Nasiga and 2nd Accused Meli Tuinakauvadra both of you stand convicted for Aggravated Burglary and Theft.

6. Section 313(1) Prescribes a maximum sentence of 17 years imprisonment for aggravated burglary.

7. Section 291(1) Prescribes maximum sentence of 10 years for the offence of Theft.

8. Considering the tariff for the offence of Aggravated Burglary in Tomasi Turuturuvesi v State (2002) HAA 86/02S the Court accepted between 18 months to 3 years as Tariff.

9. Tariff for the offence of theft was discussed in several cases. In Waisale Vakarauvanua v State (2002) FJHC 116; HAA 51J.2004S the Court accepted between 2 to 9 months as tariff for simple theft.

10. Both Accused persons submit that they are first offenders and most of the goods were recovered from them. The State have also confirms the position.

11. Considering the nature of the offence and all other circumstances I commence for your sentence at 24 months.

12. State has not submitted any aggravating factors.

But considering the facts of the case I find the following as aggravating factor:

1. You have made Mr Zhang Yong's life insecure in Fiji which may create a wrong impression on this beautiful country.

13. Considering the nature of the offence I impose 8 months imprisonment for the offence of theft.

14. Both the offence stated above were committed in the same course of transaction therefore I order both sentence to run concurrently.

15. Considering the mitigating circumstances for the 1st Accused and 2nd Accused:

(a) Both are 1st offenders

(b) Some of the Goods were recovered

(c ) Both are remorseful

(d) Period spent in remand.

Considering all mitigating circumstances I reduce your sentence by 12 months now your sentence is 18 months imprisonment.

16. Both Accused persons are pleading with the Court that they be given another chance in their life.

17. Both Accused persons pleading the Court to impose a non custodial sentence.

18. Section 26 (1) of the Sentencing and Penalties Decree states as follows:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

19. After considering all circumstances I act under Section 26(1) of the Sentencing & Penalties Decree and suspend your sentence for a period of 3 years. The nature of the suspended sentence is explained to both the Accused persons.

20. Considering the nature of the offence I inclined to act under Section 31(1) of the Sentencing & Penalties Decree.

21. Section 31(1) states as follows:

(1) If a person is found guilty of an offence the court may, subject to any specific provision relating to the offence, fine the offender in addition to or instead of any other sentence to which the offender may be liable.

22. Considering the above Section 31(1) I impose a fine of $400.00 on the 1st and the 2nd Accused (each of them should pay $400.00) in default two months imprisonment.

23. Once the entire penalty is paid out of which $700.00 to be given to the virtual complainant Mr Zhang Yong.

Summary:

24. 1st Accused is impose of 18 months imprisonment, the sentence is suspended for a period of 3 years, in addition a fine of $400.00, if the fine is not paid two months imprisonment.

2nd Accused is impose of 18 months imprisonment the sentence is suspended for a period of 3 years, in addition a fine of $400.00, if the fine is not paid two months imprisonment.

25. 30 days to appeal to Court of Appeal.
    

S. Thurairaja
JUDGE

At Lautoka
21 March, 2012