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State v Cagilaba [2016] FJMC 248; Criminal Case 316.2015 (13 April 2016)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No. 316 of 2015

STATE

v

MOSESE CAGILABA

For Prosecution : Sgt Rinesh

For Accused : In Person

Sentence : 13 April 2016

SENTENCE

1. The Accused, Mosese Cagilaba, you are before this court for sentence. You waived your rights to counsel when it was put to you on 12 January 2016. On the same date you pleaded guilty to one count of Burglary and one count of Theft, contrary to sections 312(1) and 291(1) of the Crimes Decree 2009 respectively. I find your plea to be unequivocal.
   
2. The following summary of facts was read to you in open court where you admitted to the same. You were convicted as charged.
   

“On the 15 October 2015, at about 12.00 midnight victim was on vacation with his family at the Vosa Ni Ua lodge at Maravu, Savusavu. Victim and his family were all asleep when accused entered into the house by opening the back door. Accused entered into the sitting room and grab the following items; a PC Toshiba Laptop valued at $1,050.00; Baffale JBL Flip (ii) mobile phone valued at $264.00; Apple I-Pad one touch valued at $740.00; Apple I-Phone One S4 valued at $641.00; Cables valued at $132.00; Sonny camera valued at $1320.00; headset beat ear phone valued at $396.00; Solar G-shock wrist watch valued at $397.00; Sunglass with case valued at $264.00 and a Mac book Apple brand laptop valued at $2,900.00, to the total value of $8,110.00, the Property of JEAN PIERRE. Accused than went straight to Labasa on the next morning in which he sold all the items there. Matter was reported at Savusavu Police Station whereby investigation was conducted and accused was arrested from Labasa. Accused was interviewed under caution and charge for one count of Burglary and one count of Theft. Items recovered include a PC Toshiba Laptop, Sonny Digital Camera, Mac Book Apple brand laptop and a G-Shock wrist watch”.

3. You submitted your oral mitigation after your admission to the summary of facts on 12 January 2016.
   
4. The maximum penalty prescribed for Burglary is 13 years imprisonment. The sentencing tariff was set in Mosese Uluicicia v State, Criminal Appeal No. HAA 028 of 2014, where it ranges from 12 months to 3 years imprisonment. The maximum penalty prescribed for Theft is 10 years imprisonment. The sentencing tariff was set in Vakarauvanua v The State [2004] FJHC 116, for 2 to 9 months for simple theft and 9 months and more for repeated offenders.
   
5. In sentencing, my starting point for Burglary is 2 years. I add one year for the following aggravating factors;-
   
   • (i) Forcefully entered the house by opening the back door.
   • (ii) Forcefully entered the house at night when the victim and his family were sleeping inside the house.
   • (iii) Unlawfully took the items with the total value of $8,110.00 without the knowledge and permission of the owner.
   • (iv) Took all the stolen items to Labasa on the next morning and sold all the items.
   • (v) Six of the items stolen were not recovered with the total value of $4,210.00
     
6. That increases your sentence to 3 years. You entered an early guilty plea. In the case of Vilimone v State [2008] FJHC 12, the High Court recognised that one third of the sentence should be reduced for an early guilty plea. I reduce one year for your early guilty plea. That reduces you sentence to 2 years.
   
7. I reduce 6 months for your following mitigating factors;-
   
   • (i) Not re-offend for the last 7 years.
   • (ii) Promise to be a good citizen.
   • (iii) Married with no children.
     
8. That reduces your sentence to 1 year and 6 months. I noted that you were in remand for about 10 days. In Bavoro v State [2013] FJHC 1, the court recognised that appropriate reduction in the sentence to reflect the remand period could be made under section 24 of the Sentencing and Penalties Decree 2009. I will further reduce 10 days from your sentence and your final sentence for Burglary is 17 months and 20 days imprisonment.
   
9. In compliance with the “one transaction rule” imposed by the Supreme Court in Wong Kam Hong v The State (unreported) Criminal App No. CAV 0002 of 2013 (23 Oct 2003), I impose 8 months imprisonment as your sentence for the count of Theft.
   
10. Mosese Cagilaba, you committed serious offences. The people in Fiji need to be protected from people like you. Because you have violated their privacy and protection, you need to be punished for your wrong doing. I have also noted your previous conviction. I do not think that this is an appropriate case for suspended sentence. I will sentence you for an imprisonment term to serve as a deterrent to you and other like-minded people who intend to commit similar offence in the future.
    
11. You are now sentence for;
    
    • (i) Burglary - 17 months and 20 days imprisonment.
      
    • (ii) Theft – 8 months imprisonment.
      
    • (iii) Sentence for both the offences are to be served concurrently.
      
    • (iv) Non-parole period of 10 months.
      

28 days to appeal.

......................................

C.M. Tuberi

RESIDENT MAGISTRATE