State v Diani [2011] FJMC 69; CRC 756.2011 (10 June 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 756/2011.

STATE

V

LOROSIO DAVUI DIANI

For Prosecution: - Cpl. Luke

Accused: - In person

SENTENCE

1. You LOROSIO DAVUI DIANI were charged by this court for two counts of "Theft" which is punishable under section 291 (1) of the Crime Decree No 44 of 2009, and carries a maximum penalty up to 10 years of imprisonment.
   
2. You pleaded guilty for the said two counts of "theft" on 1st day of June 2011 on your own will and accord. I am satisfied that you fully comprehended legal effect of your plea and your plea was voluntary and free from influence. Wherefore, I convicted you for the said two counts of offences of theft contrary to section 291 (1) of Criminal Decree no 44 of 2009.
   
3. It was revealed in the Summery of fact, which you admitted in open court, that you committed these two offences with another accomplice on 27th day of April 2011 at car park of the Fiji National University, Samabula. You and your accomplice forcefully opened the front quarter glass of the Mr. Priyank Chand's friend's car which was parked at the car park of the Fiji National University. Upon forcefully open the car, you stole 1x HP laptop with bag valued at $ 1,400, 2 x Vodaphone flash net valued at $ 118, 2 x flash drive valued at $ 58, 1 x Samsung mobile phone valued at $ 200,, the property of Mr. Priyank Chand who is a Student at the Fiji National University, and 1 x HP Laptop with bag valued at $ 1400, 1 x Vodaphone flash net valued at $ 79, 1 x Digicel flash net valued at $ 99, 1x Motorola mobile phone valued at $ 59 and 1 x Sony earphone valued at $ 20, the property of Mr. Shivam Reddy, who is a Student at the Fiji National University, all to the total value of $ 3,433 therein.
   
4. This is a crime of breaking and stealing in a car park at a public place in broad day light. The offences in this nature are prevalent crimes in the society. The increasing crime rate in this nature has made the society into vulnerable and insecure place. The feeling of insecurity has intruded into the day to day life of the entire population of this society where an ordinary university student is not allowed to freely enjoy their student life even within the boundaries of their own university.
   
5. I now draw my attention to the impact of these offences on these two victims. This is indeed an expensive and frustrating lost as they suddenly found their valuable belongings were stolen at the University car park by another fellow student with his accomplice. It was revealed in your mitigation submission that you are also a student at the Fiji National University. Use of laptops and internet is becoming an integral part of university education process in modern era, where most of the modern day students and academic use to store their valuable data and study materials in their laptops. Hence the lost of their laptops with their internet flash net has undoubtedly adversely affected their education process in the university.
   
6. In your mitigation submission you stated that you committed these crimes to buy drinks. I incline to consider this criminal behavior of you as an adult university student is completely unacceptable. You have demonstrated that you have no remorse and respect to the rights of your fellow students and to the society at large.
   
7. The purpose of sentencing you for these offences of theft in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, and more importantly to signify that the court and the community denounce the commission of such offences
   
8. Bearing in mind the summery of facts and the aforementioned aggravating factors, I now proceed to determine an appropriate starting point and sentence for you upon considering general principles of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree as both offences founded on same facts or which form a series of offences of the same or similar character.
   
9. Tariff for simple larceny is 6 months to 12 months imprisonment. ( Kaloumaira v State ( 2008) FJHC 63), (Manasa Lesuma v State 2004, FJHC 490). It was held in Tikoitoga v State (2008, FJHC 44, HAM088.2007, 18th March 2008), that the tariff for larceny is 18 months to 3 years. Shameem J held in Vaniqi v State (2008, FJHC 348, HAA080.2008) that tariff for simple larceny with previous conviction of a felony to be over 9 months.
   
10. Upon considering above mentioned legal precedents on Tariff for the offence of theft and aggravating factors of this offence, I select 20 months as a starting point for your sentence.
    
11. I consider following mitigating factors which were brought before me in your oral mitigation submission.
    
    1. 20 years old young first offender,
       
    2. Student at the Fiji National University,
       
    3. Pleaded guilty on the first available opportunity,
       
    4. Asked for forgiveness,
       
    5. Apologetic,
       
    6. Promised not to reoffend,
       
12. In view of aforementioned aggravating factors I increase 10 month, to reach the period of 30 months. In considering your early guilty plea in the first available opportunity I reduce 10 months and for other mitigating factors, I reduce 10 months to reach the period of 10 months. In pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree I am mindful that a sentence which is below two years could be suspended by this court.
    
13. You are a young first offender and a student at the Fiji National University, but the crime you committed is prevalent in the society and society has suffered immensely due to these types of criminal activities. Criminals like you are freely roaming around the society by instilling fear, vulnerability and feeling of insecurity in the minds of innocent citizen of the country. Justice Nawana held in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) that "I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'FOffender Syndrome' -160;- where e would tempt empt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offendere rest position is thas that the society is pervaded with crimesrimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule".
14. Accordingly, I sentence you 10 months imprisonment period for the two counts of offences of Theft contrary to section 291 (1) of Crime Decree No 44 of 2009.
    
15. 28 days to appeal.
    

On this 10th day of June 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.