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State v Singh [2012] FJMC 297; Criminal Case 639.2012 (15 November 2012)

IN THE MAGISTRATE COURT OF FIJI
WESTERN DIVISION AT NADI
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: 639/12

THE STATE

V

RAJNESH SINGH

Sgt Naidu for prosecution
Ms Jiuta S (LAC) for Accused
Date of Sentence: 15.11.2012.

SENTENCE

[1] You, RAJNESH SINGH, are charged with two counts of Criminal Trespass contrary to section 387 (4) (c) of the Crimes Decree No.44 of 2009.

[2] You pleaded guilty to the charges when the charges were read and explained to you and after you confirmed that you understood the charges.

[3] A summary of facts was put to you by the prosecution and you admitted the facts stated therein. Prosecution tendered a copy of it to court.

[4] I have reviewed the facts against the particulars of the offence charged in this case and I am satisfied that they support the essential constituents of the charge in the information laid against you by the prosecution.

[5] I therefore convict you as charged on both counts.

[7] The facts for sentence are that: On two different occasions you unlawfully entered into the compound of one Atika Devi Deo, the complainant.

[8] On 27.06.2012 at about 1900hrs you went and stood beside the kitchen window, called the complainant's name. She informed her husband. You then ran away. Again on 30.06.2012 at about 0545hrs went to the same window and called her. This time you were caught by the complainant's husband and ran off later.

[9] Aggravating features in this case are minimal hence I may sentence you without aggravating features.

[10] Guilty plea, previous good character and remorse are your mitigations.

[11] Your counsel in mitigation submitted that: you are 20 years of age single, a casual labourer at Casho Plant Hire. You saved time and resources of the court by pleading guilty to the charges in the very first instance. Your counsel also submitted that you are willing to apologize to the complainant and her husband for entering their compound. Finally your counsel submitted that you are remorseful for what you have done and seeking courts forgiveness.

[12] In Singh v The State [2000] FJHC 264; 2 FLR 127 Justice Shameem stated that:

"However as a general rule, leniency is shown to the first offenders, young offenders, and offenders who plead guilty and express remorse".

[13] A person commits a summary offence if he or she enters by night, and without any lawful excuse any dwelling house. This offence carries a maximum penalty of 1 year imprisonment pursuant to section 387 (4) of the Crimes Decree. The tariff for such an offence is 1 month to 9 months imprisonment.

[14] In State v Nukumate [2011] FJHC 109; HAC 184.2010 Justice Priyantha Fernando stated:

"Maximum sentence for Criminal Trespass is imprisonment for 1 year where the offence was committed in any building use as a human dwelling.

Tariff for the offence of Criminal Trespass is 1 month – 9 months (Ravuwai v State [2007] FJAC 55)."

[15] In your case, considering all into my account, I fix your sentence at 5 months imprisonment on each count of criminal trespass. These sentences are to be served concurrently with each other as these offences had been committed against the same complainant. Hence in total you must serve 5 months imprisonment.

[16] I am mindful of the fact that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.

[17] In Nariva v The State [2006] FJHC 6; HAA0 148J.2005S (9 February 2006) where Justice Nazhat Shameem stated:

"The court must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measure should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment".

[18] You are a young first offender. You have a family to look after. You are remorseful. I have to give you a chance to reform yourself and be a good citizen. In the circumstances I suspend the sentence for a period of 3 years from today.

[19] You must not re-offend during the operational period of the suspended sentence.

[20] If you re-offend during the operational period of the suspended sentence of imprisonment, you will liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.

[21] Twenty eight (28) days to appeal.

ORDER

[22] I make the following order:

1. You are hereby sentenced to five (5) months imprisonment suspended for 3 years from today.
   

......................................
M H Mohammed Ajmeer
Resident Magistrate
Dated at Nadi this 15th day of November 2012.