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State v Naidu [2012] FJMC 76; Criminal Case 169.2010 (17 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 169/10

BETWEEN

THE STATE

AND

1. KAMLESH NAIDU
2. RAJEEV PRASAD
   

SENTENCE

1. You, Kamlesh Naidu and Rajeev Prasad are to be sentenced upon pleading guilty to the charge of bulk breaking entering and larceny contrary to Section 300(a) of the Penal Code.
   
2. The maximum sentence for this offence is 14 years imprisonment.
   
3. On the 17th December 2009 when both of you were returning from a wedding ceremony you broke into the bulk store of Sanatan Dharam temple and stole items all to the value of $ 1000. You, Kamlesh Naidu broke into the temple whilst you, Rajeev Prasad were standing outside as the watchman. Then both of you took the items to Chameli Street and on the 18th December 2009 at about 6 am you hired a van and conveyed the items to Vitogo. Later you sold the items to another person for $ 250. The matter was reported to the Police and you were later arrested. Except one brush cutter valued at $ 500 the other items were recovered.
   
4. I consider stealing items belonging to a place of worship as an aggravating factor.
5. The Legal Aid Counsel mitigated on behalf of both of you. He said that you, Kamlesh Naidu are 37 years and single. You are a fisherman and a market vendor. You support your father. You are from a broken family. Further it was informed that you have clean records since 2006 and you committed this offence because you were drunk and you wanted to get some more drinks. It was informed that you are remorseful and seek forgiveness.
   
6. You Rajeev Prasad are 24 years and you are the youngest in the family. It was informed that you live with your mother and the father has passed away. Further the Legal Aid Counsel informed Court that you were drunk and asked for another chance. He said that you are remorseful.
   
7. Firstly it should be noted that committing offences under self inflicted intoxication is not a defence. It appears that you have committed this offence and disposed the stolen items in a well planned manner. Further it appears that you, Kamlesh Naidu have not learnt any lessons from your previous convictions. Although the Legal Aid Counsel informed that you have clear records since 2006, I am not inclined to consider that as along period of clear records as you have committed this offence in 2009. In any event I have taken into account the personal circumstances of both of you as mitigatory factors.
   
8. In this case I pick my starting point as 2 years. For the aggravating factor I enhance the sentence by 6 months. For the mitigatory circumstances I reduce the sentence by 6 months. For the early plea I give another discount of 6 months. Accordingly I arrive at a sentence of 18 months for each of you.
   
9. You, Kamlesh Naidu have 19 previous convictions. It does not appear that you have learnt a lesson from your previous convictions. Therefore I do not wish to suspend your sentence.
   
10. You, Rajeev Prasad have no previous convictions. However at this point I would like quote Justice Nawana in State v Vilikesa and another HAC 81of 2010 as follows;
    

"I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule"

11. I have considered the facts of this case and the mitigatory circumstances of you, Rajeev Prasad. However I do not think that the circumstances of this case warrant a non custodial sentence to be imposed on you, Rajeev Prasad as well.
    
12. Accordingly I impose 18 months imprisonment on each of you.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

17.02.2012