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State v Prakash [2016] FJMC 164; Criminal Case 757.2015 (27 June 2016)

IN THE MAGISTRATE COURT
SITTING AT NAUSORI

Criminal Case No. 757 of 2015

State

v

Vishal Prakash

Prosecution : DPP

Accused : Present – Legal Aid

Sentence

Vishal Prakash, you have pleaded guilty on your own free will after you consulted your counsel. You have also admitted the statement of facts. You are charged with one count of Aggravated Burglary and one of Theft.
The High Court pursuant to Section 4 (2) of the Criminal Procedure Decree 2009 extended the jurisdiction of this Court to try this case.

The Law and the Tariffs

Aggravated Burglary

Section 313 of the Crimes Decree 2009 provides that" (1) A person commits an indictable offence if he or she —
(a) commits a burglary in company with one or more other persons; or
(b) commits a burglary, and at the time of the burglary, has an offensive weapon with him or her.

Penalty — Imprisonment for 17 years.

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

(3) In this section
"offensive weapon" includes
(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or
(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.”

The maximum sentence for this offence is 17 years imprisonment.

Theft

291. — (1) 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.

Penalty — Imprisonment for 10 years.

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

The Tariff

This Court relies on State v Nasara [2011] FJHC 677; HAC143.2010 (31 October 2011) where his Lordship Justice Nawana stated that “the offence of 'Aggravated Burglary', which is indictable, attracts a punishment of 17 year-term of imprisonment, while the summarily triable offence of 'Theft' mandates a punishment up to a 10 year-term of imprisonment under the Decree.

The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).

In State v Mikaele Buliruarua) [2010] FJHC 384, the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Aggravated Burglary ' under the Decree.

I would accordingly adopt the same tariffs for the offences of 'Aggravated Burglary' and of 'Theft' under the Decree in this case."
Mitigation

Your oral mitigation has been submitted and considered by this Court. It is as follows: 27 years old, single, truck driver, looking after grandmother and mother, sole breadwinner, remorseful for action, seek leniency and non custodial sentence and that full restitution made and items recovered.

The Starting Point and Calculation of Sentence

I adopt the tariff for the offences of Aggravated Burglary and theft as set out here-in. Having noted the nature of offending and this Court takes a starting point of 30 months for aggravated burglary. This Court gives 6 months discount for the guilty plea, 4 months for mitigation and time spent in custody. The prosecution has confirmed that full restitution has not been made. Your sentence for the count of Aggravated Burglary is 20 months imprisonment. For theft having noted the Tariff, mitigation, guilty plea and time spent in custody this Court will sentence you to 12 months imprisonment. This Court notes that you are not a 1^st offender, you have committed similar offences and were given suspended sentence and a chance by this court. You donot wish to rehabilitate this court will not suspend your sentence. The sentence for count two is concurrent to count one.

Summary:

For count of Aggravated Burglary – 20 months imprisonment

Theft – 12 months (concurrent)

Any party aggrieved with this sentence has 30 days (from today) to appeal this sentence to the Fiji Court of Appeal.

Chaitanya Lakshman

Resident Magistrate

27/6/2016