State v Vure [2012] FJMC 347; Criminal Case 1658.2012 (13 December 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI AT SUVA

Criminal Case No: 1658/12

STATE

V

JOVESA VURE

Prosecution : Cpl Temesi, Police Prosecutor.

Accused : In person.

SENTENCE

1. You, Jovesa Vure is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 26.11.2012, for committing the offence of 'Theft' contrary to Section 291(1) of the Crimes Decree No 44 of2009.
   
2. You elected to represent yourself.
   
3. According to the Summary of Facts tendered by the Prosecution, on 24.11.2012, around 12.30 pm you have entered in to the Rup's Big Bear outlet in Grantham road as a customer. When you about to leave the place the security officer noticed a packet of imitation earnings falling from your pant pocket. Thereafter it was discovered that you have taken these items without paying at the cashier. The value of the item was $ 12.
   
4. The matter was reported to the police and you admitted the offence in your caution interview.The aforesaid Summary of Facts was admitted by you on your own free will.
   
5. You are convicted by this Court as charged.
   
6. The offence of 'Theft' under the Crimes Decree 2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
   

(i) According to Section 291 of the Crimes Decree 2009, the offence of 'Theft' attracts a Maximum Sentence of 10 years imprisonment.

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

(iii) In the case of Tikoitoga v State [2008] FJHC 44; HAM088.2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

(iv) The tariff for 'simple larceny', with a previous conviction of a felony, was held to be over 9 months. (per Shameem J in Vaniqi v State [2008] FJHC 348; HAA080.2008 (12 December 2008)

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

7. Accordingly, in this case, I select 08 months imprisonment as the starting point for your sentence.
   
8. In the absence of any aggravating factors your sentence remains at 8 months.
   

MITIGATING FACTORS

9. In mitigation, you stated to Court that you are 43 yrs old; married with 03 children; you forgot to pay that day; and promised not to reoffend.
   
10. I observe that you have pleaded guilty before a full hearing of the case. Hence you are entitled for a reduction of 3 months of your term of imprisonment which now stands to 5 months. (Akili Vilimone v State, Cr. App. HAA 131/2007)
    
11. You are not a first offender and hence you are not entitled to the credit that is given to an offender with previous good character.
    
12. Therefore, your final term of imprisonment now stands at 5 months.
    
13. I am mindful of the fact that a sentence below two (02) years could be suspended in terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009,
    
14. The Court notes that you have 38 previous convictions which were recorded prior to this action. Out of the 38, twelve offences including 6 theft cases had been committed by you during the last 10 years. It is regrettable to note that the most recent conviction was on 23.07.2012 and the offence was again 'Theft'. You had not shown any respect to the law as the Court on that occasion considered a suspended term.
    
15. In view of above findings, this Court declines to consider a suspension of term although the value of the stolen item is minimal. It is an indispensable responsibility of the Court to safeguard the community and the businesses form the people of your nature during the upcoming season. And this message should convey to the public to discourage people who have similar intentions.
    
16. Accordingly Jovesa Vure today you are sentenced to 5 months of incarceration.
    
17. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

13th December 2012