State v Vakabogi [2012] FJMC 45; Criminal Case 296.2012 (22 March 2012)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 296/12

STATE

V

1.DEI VAKABOGI
2. JOTAME NACILI

Prosecution : Cpl Temesi, Police Prosecutor.
First Accused : Ms.Jiuta (LAC)

SENTENCE

1. You, Dei Vakabogi is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 22.02.2012, for committing the offence of 'Theft' contrary to Section 291(1) of the Crimes Decree No 44 of2009.
   
2. You are the first accused of this case.
   
3. You were represented by your counsel.
   
4. According to the Summary of Facts tendered by the Prosecution, the complainant victim of this case has been a guest of the Holiday Inn Hotel. She was a 28 year old Chinese national.
   
5. At around 9.30 pm she has reached the hotel from the city after dinner. She was accompanied by her workmates. She had a blue hand bag in her possession.
   
6. You Dei Vakabogi were on your way towards the city from the Bowling Club side with others. You saw the complainant victim walking towards you along Victoria Parade. She was about to take her turn to the Holiday Inn.
   
7. All of a sudden you grabbed the blue hand bag of her from behind and ran away to the Albert Park. The victim cried for help and the hotel security followed you.
   
8. Mr Atulesh Prasad, a taxi driver witnessed this and chased you from his car. His quick reaction helped to arrest you. You were re-arrested by the Special Constable 4194 at the Suva South Police post.
   
9. The blue bag contained 6750 Australian Dollars in cash, a digital camera, an ear phone, and the passport of the victim. The total value of the items was AU $ 7359. All items were recovered with your arrest.
   
10. Later you were questioned by the police and you admitted the charge levelled against you in your caution interview.
    
11. The aforesaid Summary of Facts was admitted by you on your own free will.
    
12. I have convicted you for the offence that you were charged with.
    
13. 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2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.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.

(vi) The tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment( State v Vatunalaba [2010] FJHC 99; HAC 143.2008S 31 March 2010)

14. Accordingly, in this case, I select 18 months imprisonment as the starting point for your sentence.
    

AGGRAVATING FACTORS

15. Followings are the aggravating factors of this case,
    
    1. The victim of the case was a 28 year old female;
    2. The incident took place at 9.30 in the night;
    3. This had happened few meters away from the road, in front of a main hotel in the city.
       
16. In view of the above, I increase your sentence by another 12 months, and the period of imprisonment is now 30 months.
    

MITIGATING FACTORS

17. In mitigation, you stated to Court that you are 29 yrs old; remorseful for the incident; co-operated with police; promised not to reoffend.
    
18. I observe that you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 08 months of your term of imprisonment which now stands to 22 months. (Akili Vilimone v State, Cr. App. HAA 131/2007)
    
19. You are not a first offender; hence you are not entitled to the credit that is given to an offender with previous good character.
    
20. Pursuant to section 24 of the Sentencing and Penalties Decree I reduce one month from your sentence for the time you were held in remand custody prior to the sentence.
    
21. Therefore, your final term of imprisonment now stands at 21 months.
    
22. 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,
    
23. On record, you have 21 previous convictions. Out of that 8 are within the period of 10 years. Further I have noted that you were convicted on 11 occasions for similar offences. Hence I consider you as a repeat offender.
    
24. In R v. Turner 61 Cr. App. R. 67, it was stated that "repeated offenders should be sentenced more heavily than first offenders".
    
25. In Viliame Cavuilagi v. State, Crim. App. HAA 0031 of 2004 Winter J has made following comments regarding a repeat offender.
    

"Repetitive of offending must inevitably lead to longer sentences of imprisonment unless, the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society's needs.

Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves.

Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law-abiding citizens.

Third, offenders deserve punishment that fits the circumstances of the crime".

26. In view of above findings, I do not see any compelling reason to suspend your sentence.
    
27. Accordingly I sentence, you Dei Vakabogi 21 months imprisonment. You will serve 15 months from that sentence before being eligible for parole.
    
28. You have Twenty eight (28) days to appeal against this order.
    

Pronounced in open court,

YOHAN LIYANAGE
Resident Magistrate
Suva.
22nd March 2012