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State v Malimali [2016] FJMC 101; Criminal Case 722.2016 (26 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 722/2016

STATE

V

PITA MALIMALI

For the Prosecution : Cpl Josuha

For the Accused : Ms.Anisha Singh (LAC)

Date of Sentence : 26^th of July 2016

SENTENCE

1. PITA MALIMALI, you were charged with 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.
2. You elected this Court and pleaded guilty for the charge. According to admitted summary of facts on 01/05/2016 you broke in to the house of the complainant and stole items to the total value of $1,127.00, the properties of the complainant. The properties to the value of $498.00 were recovered.
3. I am satisfied that your plea was voluntarily and unequivocal and convict you for this charge.
4. The maximum penalty for Burglary is 13 years imprisonment.
5. The tariff for this offence is between 18 months to 3 years. Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002.
6. The maximum penalty for Theft is 10 years imprisonment.
7. In Jone Saukilagini [2005]FJHC 13 her Ladyship Justice Shameem held that “the tariff for simple larceny on a first conviction is from two to nine months. In cases of larceny of large amount of money sentence of 18 months to three years have been upheld by the High Court”.
8. Considering the gravity of offending and your culpability, I select 24 months as the starting point for the Burglary offence which is the base sentence.
9. Apart from facts which constitute the elements of the offence I do not find any aggravating factors and would not enhance your sentence.
10. The learned counsel from the legal aid has submitted following as mitigating factors:
    1. Young offender(19 years old);
    2. First offender;
    100. Remorseful and promise not to re-offend;
    4. Some of the items recovered;
    5. Cooperated with the police.
11. For all these mitigating factors I deduct 03 months to reach 21 months imprisonment.
12. When an accused pleaded guilty at the first available opportunity 1/3 deduction is given to concede saving of court time and resources. Following this principle, I also deduct 1/3 from your sentence to reach 14 months imprisonment.
13. Considering all the circumstances, I sentence you to 06 months imprisonment for the offence of Theft and made this concurrent.
14. Now I have to consider whether to suspend your sentence. It has been held that the courts must make an effort to keep young first offenders out of prison (Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006),Prasad v State [1994] FJHC 132).
15. Even though your behavior on that day needs to be denounced, considering your young age and past good behavior, the main consideration of this sentence is to allow you a chance to rehabilitate.
16. Therefore I sentenced you to 14 months imprisonment for the Burglary offence, 06 months imprisonment for the Theft offence and this is suspended for 03 years.
17. If you commit any offences during next 03 years, you can be charge under section 28 of the Sentencing and Penalties Decree.
18. Further based on your income ($120.00 weekly), you are capable of restitution and accordingly I order you to pay $500.00 as restitution to the complainant.
19. 28 days to appeal
    

Shageeth Somaratne

Resident Magistrate