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State v Vosakece [2013] FJMC 326; Criminal Case 69.2013 (28 August 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 69/13

BETWEEN:

THE STATE

AND:

JOSUA VOSAKECE

Prosecution : Ms Puamau (DPP Office/Lautoka)
Accused : Ms Tarai (Legal Aid Office/Rakiraki)

SENTENCE

1. Josua Vosakece you pleaded guilty to the offence of Burglary contrary to section 312(1) of the Crimes Decree No. 44 of 2009 and Theft contrary to section 291(1) of the Crimes Decree No. 44 of 2009 as charged.
   
2. You pleaded guilty on your own free will to the charge which was read and explained to you. You also accepted the facts read and tendered by prosecution.
   
3. The court being satisfied that your plea was unequivocal convicted you as charged.
   
4. The facts are on 22nd February 2013 between 11am to 12.30pm the complainant (Abijeet Singh) had locked his house and was in Rakiraki town doing his shopping. At the time when the said house was vacant, you pushed open a wooden bedroom window at the back and entered. Whilst inside the house you than stole from therein 1 x black Akita DVD player valued at $100.00, 1 x black Nokia mobile phone valued at $250.00, 1 x green and black electrical hair clipper valued at $40.00, assorted jewelleries valued at $300.00, 1 x black fry pan valued at $150.00, and 1 x red Digicel bag valued at $10.00 all to the total value of $850.00. After stealing you took the items and requested one Makario Drevanakalou to keep them as it was raining heavily.

Makario became suspicious and returned the items to you.
Complainant reported the matter to police. Investigations were carried out and upon information received you were arrested and cautioned interviewed. You also admitted the offence to police and charged accordingly.

5. Your counsel mitigated and I take the following in your favour:
   
   • Your guilty plea.
   • First offender.
   • You've remorseful and requested for forgiveness.
     
6. Aside the elements of the offences I don't see any aggravating factors.
   
7. Burglary under the Crimes Decree carries a maximum imprisonment term of 13 years. Established authorities suggest that the tariff for the said offence including theft is between 12 months - 4 years (see: State v Jese Driu, HAC 143 of 2010; State v Tomasi Turuturuvesi [2002] HAA 86/02; Cavuilagi v State [2004] FJHC 92)
   
8. Theft under the Crimes Decree carries a maximum imprisonment term of 10 years. The guideline in case authorities suggest that tariff for theft ranges from 2-9 months for 1st convictions and between 9 – 24 months for 2nd convictions depending on the value of the goods and circumstances of the stealing (see: State v Saukilagi [2005] FJHC 13; Ronald Vikash Singh v State HAA 035 of 2002).
   
9. In considering the circumstances of the offending in this case, for the offence of Burglary I take a starting point of 18 months.
   
10. There being no aggravating factors your sentence remains at 18 months.
    
11. This being your first offence and other mitigation I reduce your sentence by 4 months. For your guilty plea I further reduce your sentence by 5 months. Your final sentence for burglary is 9 months imprisonment.
    
12. For the offence of theft I repeat the same process by considering the mitigating factors and guilty plea. Your sentence for theft is therefore 6 months imprisonment.
    
13. To give effect to the principle of deterrence you are sentenced to 9 months for burglary and 6 months for theft. Since both offences were committed in one transaction both sentences are to be served concurrently. In total your sentence is 9 months imprisonment.
    
14. I take into consideration that these are your first offences and you did not benefit from the offending as all items were recovered and returned to the complainant.
    
15. It would be appropriate in the circumstances to give you an opportunity to reform yourself. Hence your sentence will be suspended. I therefore order that your sentence of 9 months be suspended for 2 years.
    
16. If you commit any offence within the operational period of 2 years, you'll be charged for breaching this suspension order and if convicted you'll be made to serve the 9 months or part of it with any other penalty imposed in that other offence.
    
17. 28 days to appeal.
    

__________________________
Samuela Qica
Resident Magistrate

28th August 2013