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State v Elen [2013] FJMC 312; Criminal Case 766.13 (20 August 2013)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA
Criminal Jurisdiction

Criminal Case No. 766 of 2013

THE STATE

–v-

RICHARD ELEN

For the State : PC Taito
For the Accused : Present In Person

SENTENCE

1. RICHARD ELEN, you have pleaded Guilty to the following Charge:
   

Going Equipped for Theft or a Property Offence: Contrary to Section 315 (1) of the Crimes Decree Number 44 of 2009 and the Particulars of Offence is as follows;

On the 26th day of April, 2012, at Suva, in the Central Division, when not at home, has with him 1 x spanner, 1 x chisel, 1 x cooking knife, 1 x offset spanner and 1 x shifter, with intent to use in the course of theft or a property offence.

2. You were convicted of the charge on your own plea of guilty. I am satisfied that you are fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you is as follows; that;
   

“The Richard Elen [Accused] of Lot 10 Vatoa Street, Narere was resting at St Joseph Secondary School bus stop on his way to Suva with his brothers namely Peceli Nawalu [PW-2], student at Maritime and Esala Nawaqaliva [PW-3], student at FNU both of Lot 10 Vatoa Street, Narere.

The [Accused] while sitting there with [PW-2] and [PW-3] was approached by IP Wate Vocevoce [PW-1], Police officer of Lot 10 Koroi Place, Cunningham. [PW-1] who was attending to a report of breaking at the Pasifika School of Hospitality approached the [Accused], [PW-2] and [PW-3]. [PW-1] searched the [Accused], [PW-2] and [PW-3]. After searching them [PW-1] found that the [Accused] had 1 x spanner, 1 x chisel, 1 x cooking knife, 1 x offset spanner and 1 x shifter in his possession which he was carrying in a black knapsack. [PW-1] arrested the [Accused] and escorted him, [PW-2] and [PW-3] to Totogo Police station for questioning. [PW-2] and [PW-3] did not know that the [Accused] had the mentioned equipment’s in his knapsack until he was searched by [PW-1].

The [Accused] was interviewed under caution by DC 2560 Mika Kuo [PW-4], Police Officer of Lami where he stated that he did not know that he had those equipment’s inside the knapsack. The [Accused] was later charged by DC 4108 Eroni Nakuta [PW-5], Police officer of Kalabu for 1 x count of Going Quipped for Theft or a Property Offence, Section 315 (1) of the Crimes Decree Number 44 of 2009.

4. Mitigating Factors and Personal Background:
   

I consider oral and written mitigation submitted by you including your personal back ground on your behalf which state inter alia as follows; That you are;

24 years old; married; have kids; working at Construction Shipping earns $120 a week; you were rushing to your aunt’s house. You did not check it; sole breadwinner; there is no one to look after your kid and wife as you are remanded in custody; seek bail; have a surety.

5. Relevant Law
   

I reproduce penal section for the offence of “Going equipped for theft or a property offence” it reads as follows and carries maximum penalty of Imprisonment for 3 years.

Section 315.(1) A person is commits a summary offence if he or she, when not at home, has with him or her any article with intent to use it in the course of, or in connection with, theft or a property offence.

Tariff

The Courts in Fiji yet to set a tariff for the offence of “Going equipped for theft or a property offence”. The equivalent offence under the Penal Code was “Being found in possession of housebreaking implements contrary to section 303 (b) of the Penal Code, which carries maximum sentence was 5 years imprisonment and that the tariff was around 12 months imprisonment. see SUKULU TIKOITOGA v. THE STATE Criminal Appeal No: HAA .In this case her ladyship Justice Nazhat Shameem reffered to Josua Kania v. The State and Peniasi Tirikula v. The State as follows;

Singh J in Josua Kania v. The State Crim. App. HAA063 of 2002, considered an appeal against an 18 month sentence imposed on the appellant for the same offence under section 303(b) of the Penal Code. In that case the appellant had been found in possession of a pinch bar, a pair of hand gloves and a kitchen knife, at midnight. He reduced the sentence to 12 months but only because the magistrate had wrongly taken the compulsory one-third remission into account when sentencing.

In Peniasi Tirikula v. The State [2005] HAA0134J.2005S, the appellant was sentenced for a number of offences including one of being found in possession of housebreaking implements at night. He had been found in possession of a pinch bar, pliers and a screwdriver. He was sentenced to 12 months imprisonment and the sentence was upheld by High Court.”

6. Sentence
   

In the light of SENTENCING GUIDELINES under section 4 (1) and (2) and GENERAL SENTENCING PROVISIONS under section 15(3) ) of the Sentencing and Penalties Decree I consider an appropriate sentences on you.

Having considered your Guilty Plea and the Aggravating and Mitigating Factors in this case, I note that you have live 17 previous convictions. Further, I note that you are remorseful. Furthermore in sentencing you I note that there are no special aggravating factors as your actions constitute the elements of the offence.

In view of above mentioned legal precedents on Tariff for this offence, I select 12 months as a starting point. In considering your early guilty plea at the first available opportunity I reduce 03 months. For the mitigating factors I reduce 03 months to reach the period of 06 months. You have string of previous convictions; therefore you are not entitled for further deductions for your previous good character.

Now you sentence stands for 06 months imprisonment period.

I note that you were remanded in custody from 29th April 2013 to 13th May 2013, in total you was remanded for 15 days in custody for this particular matter,

Section 24 of the sentencing and penalty Decree reads under the heading of “Time in custody before trial to be deducted” that “If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.” And also in Fiji court of Appeal in: Prasad v State {2010] FJHC 12; AAU 0111.2007(8th April 2010) at paragraph 6 stated:

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence. Although it is not necessary to make a precise calculation (Basa v the State [2006] FJHC 23:AAU0024.2005 (24th March, 2006)".

In all the circumstances I find it appropriate to consider the time you spent in custody. In the light of above judgement and in pursuant to section 24 of the sentencing and penalty Decree I deduct 02 weeks from your imprisonment period. Now your sentence stands for 165 days.

Accordingly, I sentence you 165 days imprisonment period for the offences of Going Equipped for Theft or Property Offences contrary to Section 315 (1) of the Crime Decree No. 44 of 2009.

28 days to Appeal.

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Lakshika Fernando
Resident Magistrate
On this 20th day of August 2013