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State v Seru [2013] FJMC 300; Criminal Case 02.2013 (9 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 2 of 2013

STATE

–v-

ENERIKO SERU

For the State: WPC Fisher
For the Accused: In Person

SENTENCE

1. ENERIKO SERU, you were charged with the offence of Damaging Property Contrary to section 369(1) of the Crimes Decree No.44 of 2009 and the particulars of offence is as follows;

On the 16th day of December, 2012 at Namadi Heights in the Central Division willfully and unlawfully damaged the 1 x Front passenger door window valued at $150.00,and 1 x Car dash board valued at $2,350.00, all to the total value of $2,500.00, the property of SARAH KUMAR.

2. You were convicted of the charge on your own plea of guilty.
   
3. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;
   

"On the 16th day of December, 2012 at about 10.45pm, at Namadai Settlement, Namadi Heights, SARAH KUMAR [Complainant] was at her residence and was informed by one of her neighbor, LOTE RATURAGA that ENERIKO SERU [Accused] of the same Settlement was seen breaking into her parked vehicle on the Road. Subsequently the Complainant saw the Front passenger dashboard on fire (valued at $2,350.00). They complainant managed to put the fire out and also discovered the Front passenger door window also was broken, (valued at $150.00) totaling $2,500.00. When the [Accused] discovered that he was being seen by LOTE RATURAGA, the [Accused] approached him and warned him not to tell anyone or he would do something to him. The [Accused] also later approached LOTE RATURAGA at home and apologized. Subsequently the Complainant reported the matter at the Samabula Police Station and an investigation was carried out. The [Accused] was arrested and interviewed under caution and admitted to allegations put to him."

4. Law
   

I reproduce Section 369 of the Crimes Degree No.44 of 2009.It says;

(1) A person commits a summary offence if he or she wilfully and unlawfully destroys or damages any property.

Maximum Penalty for damaging property is Imprisonment for 2 years, if no other punishment is provided under any other provision of this section.

There is no set of tariff for the offense of Damaging Property (Gounder J in Tikomainiusiladi v State [2008] FJHC 18; HAA 134.2007 (15 February 2008). But in Navitalai v The State, Criminal Appeal No HAA0084 & 85 of 2002 S, a sentence of 2 years imprisonment for the damage of a door valued at $250.00 was reduced to 6 months imprisonment on appeal.

5. Mitigating Factors and Personal Background
   

I consider following Mitigating factors which were brought before me in mitigation. That you are;

38 years, married with 4 children, all of them are schooling, self-employed welder and earns $140 per week; Sole-bread winner and wish to restitution.

6. Aggravating Factors
   

According to the information revealed by the Summary of Facts 1 x Front passenger door window valued at $150.00, and 1 x Car dashboard valued at $2,350.00 which is a sustainable amount. You were drunk when the offence took place. This aggravates the situation. Other than that there are no any special aggravating factors as the charge constitutes counts of elements of offence.

7. Sentence
   

In the light of general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree, I now consider appropriate sentence on you.

I acknowledge your early guilty plea; you are a first offender and also consider Mitigating Factors in this case and noted you are remorseful.

I order you to pay a fine $100.00 (01 penalty unit) to be paid into Court in default 10 days for the offence of Damaging Property Contrary to section 369(1) of the Crimes Decree No.44 of 2009.
I note that the learned Prosecutor has sought a compensation of $2500.00 submitting a quotation dated 31-12-12. I have carefully analysed the charge and summary of facts. The offence had committed on16th day of December, 2012 and noted that there is no indication as to a particular vehicle Registration No. Therefore it is not just in the circumstances' to order the unrepresented accused person to pay the total amount. At the same token I note that the accused is willing to compensate for the damage. Therefore, I order accused to pay $1000.00 to the registry as compensation to the complainant by instatements of $200.00 per month. 28 days to pay the fine and first instalment.
28 days to appeal.

--------------------------
Lakshika Fernando
Resident Magistrate
On this 09th day of July, 2013.