Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 011 of 2012

BETWEEN:

MIKAELE RATUSILI
Appellant

AND:

STATE
Respondent

BEFORE: MR. JUSTICE P. K. MADIGAN

COUNSEL: Mr. J. Singh (instructed by I. Khan) for the Appellant
Ms. M. Fong for the State

Date of Hearing: 25 July, 2012

Date of Judgment: 1st August 2012

JUDGMENT
[Sentencing for Theft]

1. On the 4th day of June, 2012 at the Magistrates Court in Savusavu the appellant entered an unequivocal plea of guilty to one charge of theft of 205 pearls valued at $61,500 from his employer Fiji Pearl Company. He was sentenced on the same day to a term of imprisonment of thirty months with a minimum to be served of two years. The appellant seeks to appeal that sentence.
   
2. The facts agreed by the appellant in the lower Court were that he had been working as a pearl cleaner at the company for a year and together with two colleagues he had to clean up to 1,200 pearls and their shells a day. In this process the appellant stole 205 pearls. The theft was revealed when pearls were offered for sale on the streets of Savusavu and the employer became suspicious.
   
3. The appellant's grounds of appeal settled by his Counsel, Mr. I. Khan, are
   
   • (i) The learned Magistrate erred in fact and law in not taking into account that the Appellant is a first offender;
     

(ii) The learned Magistrate erred in law and in fact in not taking into account the Sentencing and Penalties Decree 2009 and;

(iii) The learned Magistrate erred in law and in fact in not advising the appellant "benefit of legal aid before the plea was taken on the first day of appearance".

4. The maximum penalty for theft is 10 years imprisonment and unfortunately the tariff is uncertain because of conflicting "tariff judgments" handed down by this Court.
   
5. In mitigation the accused advanced the circumstances that he is 34 years of age, married with two children. His wife is currently pregnant and he is the sole breadwinner for the family. He committed the offence to supplement low wages he received from his employer. He is a first offender and remorseful.
   
6. The Magistrate found aggravating the fact that the accused had betrayed the trust of his employer; also that he had benefitted from the theft by selling the pearls to innocent buyers; that he had harmed confidence in the pearl industry and that only a few (25) of the pearls had been recovered.
   
7. In sentencing, the Magistrate took a starting point of 36 months imprisonment which he said was at the higher end of the tariff given the high value of the stolen pearls. He added twelve months for the aggravating factors, deducted six months for the mitigating factors and another 12 months for the plea of guilty; arriving at a total term of imprisonment of 30 months. He declined to suspend the sentence.
   
8. Mr. Singh in a very ardent plea in mitigation asks for leniency on the basis that the appellant's wife is pregnant and that pursuant to section 4(1) (d) of the Sentencing and Penalties Decree, no regard was given to the rehabilitation of this appellant. He submits that the sentence should have been suspended given his obvious remorse and his co-operation with the authorities. Despite that he argues that the final sentence is too high for the offence.
   

The Tariff for Theft

9. There have been various and varying decisions from this Court on the tariff for larceny (which offence has now been replaced by theft).

10. In the case of Chand HAA30.2007 in a case of housebreaking and larceny, Mataitoga J. said that the tariff for larceny was between two to three years. Unfortunately the learned Judge did not explain this high tariff, nor did he make reference to the facts that pertained to that case.

11. In the case of Niudamu HAA28.2011, this Court held that the tariff for theft by a first offender should be between two to nine months.

12. The dicta of Shameem J. in Jone Saukilagi HAC21. 2004 are most helpful. Her Ladyship said this:

"the tariff for simple larceny on a first conviction is from two to nine months and on a second conviction a sentence in excess of nine months. In cases of larceny of large amounts of money sentences of 18 months to three years have been upheld by the High Court. (Sevanaia Via Koroi HAA31.2001). Much depends on the value of the money stolen and the nature of the victim and defendant. The method of stealing is also relevant."

13. From the cases then the following sentencing principles are established:

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

14. Although the higher tariff is apposite for breach of trust thefts of large

9. amounts of money, thefts of sums of money from an employer by way of fraud come within the Barrick 81 CrApp R(S) 78 guidelines, as developed by this Court in Anand Kumar Prasad and ors [2011] FJHC 218.
   

The Instant Case

15. Given the clear breach of trust of an employee in this case and the high value of the pearls stolen, the starting point adopted by the Magistrate (36 months) was quite appropriate. The Magistrate fell into error however by making those same aggravating features the subject of an additional twelve months additional penalty. As was said in the appeal of this appellant's co-worker (Liuta HAA011.2012 LBS) this is punishing the offenders twice for the same reasons. I would remove the aggravating features component of the sentence. His obvious remorse and his co-operation with the authorities justify the 6 month discount given for mitigatory features.

16. The appellant places nothing before the Court to suggest that the accused's legal options were not explained to him, options that include the availability of legal aid. The Court Record suggests otherwise. His rights were explained to him – he chose to plead guilty.

17. The appeal succeeds to extent that the sentence of thirty months is set aside and a new sentence of 18 months imposed. The appellant will serve a minimum term of 12 months before he is eligible to be released on parole.

Paul K. Madigan
Judge

At Labasa
1st August, 2012.