Chand v State [2012] FJHC 1308; HAA034.2011 (10 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 034/2011

BETWEEN:

PARTISHA AMITA CHAND
APPELLANT

AND:

STATE
RESPONDENT

COUNSEL: Mr.S.Nandan for the Appellant
Ms.A.Lomani for the Respondent/State

JUDGMENT

01. Patrisha Amith Chand (hereinafter "the appellant") was charged for THEFT contrary to section 291 of the Crimes decree 44 of 2009 of the Laws of Fiji. The Charge was filed at the Nausori Magistrates Court on 02nd day of June 2011.

02. The particulars of offence were:

"Patricia Amita Chand between 01st day of October 2010 and 15th of December at Nausori in the Central Division stole cash to the total amount of $4945.55 the property of Vunimono Arya School"

03. on 29th June 2011, the charge in respect of Criminal Case No: 341/2011 was read out to the Appellant. She pleaded guilty to the charge and admitted the summary of facts. Later she had informed court that she only took $1000.00. Hence her guilty plea was vacated and the matter set for hearing on 17/08/2011.

04. On 17th August 2011, the appellant represented by Legal Aid counsel inform court that she was willing to plea to the amount mentioned in the charge. She pleaded guilty to the charge and admitted the summary of facts. On 12/10/2011 she was sentenced to a prison term of one year with a non-parole period fixed at 8 months.

05. Being aggrieved by above sentence the appellant has appealed against the sentence on the following ground:

1. The Learned Magistrate erred in law and in fact in sentencing the appellant to prison of one year with non-parole period fixed at 8 months;
   
2. The Learned Magistrate erred in law and facts and in fact in failing to consider that the appellant was the sole breadwinner in the family.
   
3. The Learned Magistrate erred in law and in fact in failing to consider that the Accused was only 20 years of age at the time of sentencing and was a young first offender and in permanent employment.
   
4. The Learned Magistrate erred in law and in fact in failing to consider that this sentence 01 year could have been suspended given all circumstances of the case and the compelling reasons outlined in the mitigation;
   
5. The Learned Magistrate erred in law and fact in failing to consider that the Appellant was a first offender and she was willing to repay the amount to the complainant.
   
6. The Appellant also added that the sentence given all the circumstances of the case was harsh and excessive.
   

06. The general principle of sentencing under section 15(3) of the Sentencing and Penalties Decree No: 42 of 2009 States:

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not met the objectives of sentencing stated in section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this part"

07. The objectives of sentencing, as set-out in Section 4(1) of the Decree, are as follows:

1. To punish offenders to an extend and in a manner, which is just in all the circumstances;
   
2. To protect the community from offenders;
   
3. To deter offenders or other persons from committing offences of the same or similar nature;
   
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

08. Larceny by servant is of course a very serious offence in that it goes to the heart of the trust relationship between an employer and his servant. As was said in Barrick-81 Cr.App.R(s) 78:

"The terms suggested are appropriate where the case is contested. In any case where a plea of guilty is entered however the court should give the appropriate discount"

09. Section 26 (1) of the Sentencing & Penalties Degree 2009 states:-

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances"

10. The Learned Magistrate, after considering the aggravating factors and mitigation submissions has imposed one year imprisonment with a non-parole period of 8 months. Due to change of plea by the appellant he was not awarded a 1/3 discount. On the very first day, appellant pleaded guilty without being represented by a counsel. But when pleaded second time appellant was represented by a counsel from Legal Aid.

11. Change of plea, of course is waste of time of the prosecution and the court. But in this case appellant was not represented by a counsel on the very first day. She pleaded guilty without proper instructions. After obtaining necessary instructions from her Legal Aid Counsel, appellant pleaded guilty to the charge, admitted the amount mentioned therein and under took to repay the amount in instalments of $60.00 per week. She could not repay the instalment due to prison sentence imposed by the Learned Magistrate.

13. The appellant is 20 years old girl and the sole bread winner of the family. She is a first offender. She assists her mother in supporting her family as her father and brother both are not working. She has fully cooperated with police in her caution interview. She has already spent 04 months of the sentence. In the case Nariva v The State (2006) FJHC 6; HAA0148J.2005S (9/02/2006) where the Learned Madam Justice Nazhat Shameem stated:

"The court must always make every effort to keep young offenders out of prison. Prisons do not always rehabilitate the young offenders. Non-custodial measure should be carefully explored first to assess whether offender would acquire accountability and a sense of responsibility from such measure in preference to imprisonment"

14. The appellant has no previous convictions. She is truly remorseful and must be given an opportunity to prove that remorse by embarking on a period of good behaviour. I, therefore, suspend the remaining period of imprisonment for three years from 10/02/2012. Suspended sentence is explained to the appellant.

15. Appellant has 28 days to appeal.

P.Kumararatnam
JUDGE

At Suva
10/02/2012