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State v Turaga [2013] FJMC 317; Criminal Case 744.2013 (20 June 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 744/2013

THE STATE –v- NIKO TURAGA

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

SENTENCE

1. NIKO TURAGA, you have pleaded Guilty to charges in three cases as follows;

One count of Burglary contrary to section 312 (1) of the Crimes Decree No.44 of 2009 and one count of Theft contrary to section 291 (1) of the Crimes Decree No.44 of 2009.the particulars of offence as follows;

Count 1

On the 20th day of April, 2013 at Suva in the Central Division, entered into 139 Wailea Settlement as a trespasser, with intent to steal household items therein.

Count 2
On the 20th day of January, 2013 at Wailea Settlement, Suva in the Central Division, dishonestly and appropriately (stole) 1 x 26 inch Akita flat screen television valued at $482.62, 1 x Forme Mobile phone valued at $59.00 total valued at $541.62 the property of ETUATE BALEISUVA.

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 are as follows;

Count 1

On the 20th day of April, 2013, at about 1.00pm at Lot 139 Wailea Settlement, Raiwaqa Niko Turaga [Accused], 28 years, unemployed of Wailea Settlement entered and stole 1 x 26 inch Akita flat screen television valued at $482.62 and 1 x Forme mobile phone valued at $59.00 the property of Etuate Baleisuva [PW-1], 22 years, domestic duties. On the above date and time [PW-1] and her family securely locked all doors and windows to their house and went to their neighbour's house to celebrate Ram Naomi (religious celebration). The [Accused] saw that the house was vacant at the time he then opened the back door by using his finger to push open the nail which locking th4 door from inside and he entered into the house. Then he closed the door again.

Count 2

The [Accused] entered into [PW-1]'s bedroom saw the mobile phone on top of the bed and the Akita flat screen television on top of the bed. The [Accused] stole both the items and left out again through the back door. [Accused] then took the items to his cousin namely Maciu Rasese [PW-2], 23 years and Mosese Nakalevu, 32 years both of Wailea Settlement house. The [Accused] then pawn the items at Mags Pawn Shop for $120.00. The matter was reported at Raiwaqa Police Station and investigation was carried out. The [Accused] was arrested and caution interviewed the Akita flat screen television was recovered from Mags Pawn Shop, Suva and exhibited at Raiwaqa Police Station.

4. Statutory Indication

Burglary contrary to section 312 (1) of the Crimes Decree No. 44 of 2009

I reproduce section 312. (1) of the Crimes Decree N0.44 of 2009 for clarity. it states; A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building.

(2) For the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of burglary.

Maximum Penalty for the offence of burglary is Imprisonment for 13 years.

Tariff

The tariff for the offence of Burglary and Housebreaking was set by Justice Shameem in the case of Sitiveni Cikamatana –v- The State [2006] HA081/2006 where her ladyship stated that the tariff is from a suspended term to 3 years in prison with sentences at the lower end of the tariff being reserved for first offenders and it was held in Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002, and Mesake Ratabua v The State [2004] HAA 026 of 2004 and Charlton Lanyon v The State [2004] HAA 042 of 2005 that the tariff for the offence of Burglary between 18 months to 3 years .

In State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), justice Madigan for the burglary offences took a starting point of three years, which his Lordship stated should be the accepted tariff for domestic burglary. While the starting point for theft was taken as three years.

Theft contrary to section 291 (1) of the Crimes Decree No. 44 of 2009

Section 291 (1) of the Crimes Decree No.44 of 2009; A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.

Tariff

Maximum penalty for theft is Imprisonment for 10 years.

It was held in Tikoitoga v State (2008, FJHC 44, HAM 088 2007) The Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vatunalaba (2010, FJHC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small.

5. Aggravating Factors

According to the information revealed by the Summary of Facts placed before court; the crime you committed is an act of home invasion.

Justice P. Madigan in State v Tabeusi [2010] FJHC 426; HAC095-113.2010L (16 September 2010), stated "People should be free to enjoy their homes with impurity and without uninvited invasion and to maintain their possessions without fear of theft."

I do not have evidence before me to indicate whether this offence pre planned or not. But without doubt the offence was one of joint enterprise. The aggravation being acting in concert with others: Hon. Justice Paul K. Madigan in State Vs Kaliova Bainivalu Criminal Case No. HAC 030 OF 2010.
6. Mitigating Factors and Personal Background:

I consider the mitigation submissions brought before me. That you are;

29 years old; single; Casual worker on contract and earns $100.00 a week; seek Court's forgiveness and seek a lenient sentencing. You were drunk and you had no money at the offending.

7. Sentence

I note in State v Tabeusi [2010] FJHC 426; HAC095 – 113.2010L (16 September 2010) Justice Madigan stated that It is the Courts role to protect the community from reckless people and criminals. In, "the Court cannot ignore its responsibility to the community to protect it from wanton crime. People should be free to enjoy their homes with impurity and without uninvited invasion and to maintain their possessions without fear of theft. The people in the urban areas of Fiji are presently terrified of robberies and unwanted invasions..."

NIKO TURAGA, this is your sentence:-

For the First Count of Burglary I sentence you to 06 months imprisonment

For the Second Count of Theft I sentence you to 03 month imprisonment.

Pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.

You are deemed to be a first offender. I also note that the flat screen TV was recovered.

I draw my attention to the case of Pita Seruvatu v State Crim. App N0.85 of 1992 where the Justice Jesurathem stated that "It has been emphasized by the Court that when the accused is a first offender it should be the endeavour of the sentence to keep him away from prison as far as possible" Further, in Akeai Ranuku v The State HAA 009 of 2009 Justice Daniel Goundar stated that " It is trite principle of sentencing that every effort should be made to keep young and first time offenders away from prison..."

I have also considered your mitigation and personal background. You have shown signs of remorse.

Considering the circumstances of this case, I am of the view that it is just in the circumstances to suspend your sentence enabling you to reform and rehabilitate away from a custodial sentence. Wherefore I suspend your sentence for three years.

If you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

On this 20th day of June 2013