State v Nakuta [2011] FJMC 140; Criminal 941.2011 (10 November 2011)

IN THE MAGISTRATE COURT OF FIJI
WESTERN DIVISION AT NADI

CRIMINAL CASE NO: 941/11

STATE

V

JOPE NAKUTA

Sgt. Naidu for prosecution
Accused in person
Date of Sentence: 2011-11-10.

SENTENCE

[1] You, Jope Nakuta, are charged with one count of theft contrary to section 291 (1) of the Crimes Decree No. 44 of 2009.

[2] You pleaded guilty to the charge when the charge was read over and explained to you and after you confirmed that you understood the charge.

[3] When explained about your right to counsel you told that you are going to represent by yourself and that you are waiving your right to counsel and that is your free will.

[4] A summary of facts was put to you by the prosecution and you admitted the facts stated therein. Prosecution tendered a copy of it to court.

[5] I have reviewed the facts against the particulars of the offence charged in this case and I am satisfied that it supports the essential constituents of the charge in the information laid against you by the prosecution.

[6] I therefore convict you as charged.

[7] The facts for sentence are that: on 19 August 2011, between 0700hrs and 1030 hrs at Qeleloa, Nadi dishonestly appropriated a cow valued at 800.00, the property of Raj Kumar. On that day the complainant tethered the cow at the grazing land on the side of San Bruno Hotel. You took the cow and sold it for $500.00. Further you sought the assistance of a 16 years old student in selling the cow and he assisted the police to recover the cow.

[8] The aggravating factors are that: you stole the cow which was the complainant's livelihood, you engaged the innocent young student in the commission of the offence and total lack of respect towards property rights of others.

[9] Your mitigations are that: your guilty plea, recovery of the cow, your personal circumstances, your forgiveness and apology.

[10] According to section 291 of Crimes Decree, the offence of theft attracts a maximum sentence of 10 years imprisonment.

[11] Theft is similar to the offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17 (which is now repealed). Tariff for the offence of theft may be summarized as follows:-

I. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)

II. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

III. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.

[12] Theft of cattle has been a common occurrence in Nadi hence there is a need to increase the tariff.

[13] Accordingly, in this case, I pick 30 months imprisonment as my starting point and increase by 4 months to reflect the aggravating factors. This takes an interim total of 34 months imprisonment.

[14] I observe that you have pleaded guilty in the first available instance hence you are entitled for a 1/3 reduction of your term of imprisonment (Akili Vilimone v State, Cr. App. HAA 131/2007). I therefore reduce the sentence to 24 months to reflect the guilty plea. You are not entitled to any discount for your previous good behaviours in that you have 18 previous convictions from 1999 till 2009. Nevertheless, I have disregarded your convictions that are 10 years old. Still you have 14 live convictions which include similar convictions.

[15] I am mindful of the fact that in terms of section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case I fix 12 month non-parole period.

[16] The duty cast upon this Court is not only be fair to you as an accused as urged by you, but also to serve justice to the society at large as expressed by Winter J in the case of Viliame Cavuilagi v State [Crim. App. HAA 0031 of 2004].

[19] Twenty eight (28) days to appeal.

ORDER

[20] I make the following order:

1. You are hereby sentenced to 24 months imprisonment and you will serve 12 months of that without being entitled to parole.
   

M H Mohammed Ajmeer
Resident Magistrate

Dated at Nadi this 10th day of November, 2011.