State v Leilani [2012] FJMC 98; Criminal Case 558.2012 (21 May 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No: 558/12

STATE

V

SALOTE LEILANI

Prosecution : Cpl Reddy, Police Prosecutor.
Accused : Appeared in person.

SENTENCE

1. Salote Leilani is an 18 year old female. She is from Cunningham area. On 18.04.2012 at around 4.30 in the evening she walked in to the residence of her cousin sister in Delainabuni settlement to pay a visit. The cousin was not at home. Salote packed some of her cousin’s garments with some other items and fled. Jiutatia Ledua who was at home saw this and told the cousin on her arrival. 19 year old cousin reported this matter to the police.
   
2. Salote Leilani was arrested by Nabua police and an interview held under caution. She admitted the allegation and later the items were recovered.
   
3. Salote Leilani was brought before the Court with a charge of ‘Theft’ contrary to Section 291(1) of the Crimes Decree No 44 of2009. $ 180 worth of cloths and $ 20 pair of ladies shoes were among the stolen items.
   
4. As preferred, the charge was explained to Salote in Fijian language. She decided to represent herself. She opted to enter a ‘Guilty Plea’ on her own free will. The Court confirmed on her voluntariness. The Summary of Facts was explained to Salote and admitted on her own free will.
   
5. 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2009 is similar to the offence of ‘Larceny’ under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
   
6. According to Section 291 of the Crimes Decree 2009, the offence of ‘Theft’ attracts a Maximum Sentence of 10 years imprisonment. There is no doubt it can be categorized as a serious offence.
   
7. Guideline judgements identify 6 months to 12 months imprisonment as tariff for the offence. Section 15 (1) of the Sentencing and Penalties Decree provides a range of sentencing options.
   
8. The general principle of sentencing is not to impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing as mentioned in section 4 of the decree. A sentence of imprisonment should be regarded as the last resort.
   
9. Sentencing and Penalties Decree 2009 offers discretion to sentence an accused person without entering a formal conviction. Section 16 states,
   

16. — (1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including —

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender’s economic or social well-being, and on his or her employment prospects.

10. At the very outset the Court should be mindful of the relationship between the accused and the complainant. Both were teenagers with one year age difference. They were living in the same area. When the accused went in to the complainant’s residence there had been another person inside the house. The absence of a possible charge in these types of situations for ‘Criminal Trespass’, allows the Court to presume that she was an ‘authorized person’ to enter that property. There is no information to say that the stolen items were ‘new’. Probably the garments may be used items of the complainant. The total value of the stolen items should also be counted and it is only $ 200.
    
11. This is not a case of public interest. Although it assembles the elements of ‘Theft’, in my view it can be considered as a trivial offence.
    
12. There is limited material before me to consider the past history and character of the accused. She is 18 years and a first offender. Her mother stood up to be her surety and she was present on both Court dates. This in fact shows that the accused has some kind of family ties compared to other persons of her age. Even in the absence of other material I have no difficulty to arrive at the conclusion that she is a person with an unblemished character.
    
13. The Court has to assess the impact of a conviction on the accused when exercising its discretion. The accused asked a second chance to rehabilitate in her mitigation oral submission. The willingness of the accused to turn on her life in to better era was expressed by this submission.
    
14. It is prudent to note that life and social well being expectation of an eighteen year old is higher than a middle age person. A conviction against a person will undoubtedly fade his or her future prospects for higher education or employment.
    
15. Part 9 of the Sentencing and Penalties Decree further enlightens the Court on the issue of ‘Dismissals, Discharges and Adjournments’.
    

s.43. — (1) An order may be made under this Part —

(a) to provide for the rehabilitation of an offender by allowing the sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed;

(c) to allow for circumstances in which it is inappropriate to inflict any punishment other than nominal punishment;

(d) to allow for circumstances in which it is inappropriate to record a conviction;

(e) to allow for the existence of other extenuating or exceptional circumstances that justifies a court showing mercy to an offender.

16. In State v Chand [1998] FJHC 247 it was held;
    

‘In discharging the Respondent without conviction the learned Magistrate was required to exercise discretion under Section 44 of the Penal Code. In terms of the section the Court must, leaving regard to the circumstances including the nature of the offence and the character of the offender be of the opinion that "it is inexpedient to inflict punishment". A discharge is the most lenient sentence that can be imposed for an offence. Indeed it is recognized by the wording of the section as being no punishment at all. Even a conditional discharge only requires that the offender commits no offence during a stipulated period - something that should not be a burden as it is what a responsible citizen is expected to do. The discretion should be exercised with great care and only in "very exceptional circumstances" (Police v McCabe [1985] 1 NZLR 361). It is, for example, appropriate in such cases as where the offence is trivial or only technical (R v Kavanagh - Court of Criminal Appeal (England) 16th May 1972), where the accused is morally blameless (R v O'Toole - (1971) 55 Cr App R 206) or where the accused has suffered in a manner that is wholly disproportionate to the offence committed (R v Kavanagh (supra) and Police v Roberts [1991] 1 NZLR 205)’.

17. Above noted case discussed the same principles although it was in the Penal Code which is repealed now.
    
18. In State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009) Goundar J considered the principles upon which the discretion under the old section 44 of the CPC was to be exercised. His lordship summarized the position,
    

‘Subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v Isimeli Neneboto [2002] HAA87/02. In Commissioner of Inland Revenue v Atunaisa Bani Druavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations.'

19. In State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) His Lordship the Chief Justice held;
    

'The effect of the cases and the purport of the more detailed provisions of the Sentencing and Penalties Decree with regard to discharges can be summarized. If a discharge without conviction is urged upon the court the sentencer must consider the following questions, whether:

(a) The offender is morally blameless.

(b) Whether only a technical breach in the law has occurred.

(c) Whether the offence is of a trivial or minor nature.

(d) Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest.

(e) Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose nominal punishment.

(f) Are there any other extenuating or exceptional circumstances, a rare situation, justifying a court showing mercy to an offender.'

20. If the Court is satisfied to release an accused person without conviction the options are stipulated in section 45 of the Sentencing and Penalties Decree.
    

45. — (1) A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction.

(2) A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceedings for a period of up to 5 years and release the offender upon the offender giving an undertaking to comply with the conditions applying under sub-section (2), and any further conditions imposed by the court.

(3) An undertaking under sub-section (2) shall have conditions that —

(a) that the offender shall appear before the court if called onto do so during the period of the adjournment, and if the court so specifies, at the time to which the further hearing is adjourned;

(b) that the offender is of good behaviour during the period of the adjournment; and

(c) that the offender observes any special conditions imposed by the court.

(4) A court may make an order for restitution or compensation in accordance with Part X in addition to making an order under this section.

(5) An offender who has given an undertaking under sub-section (1) may be called upon to appear before the court —

(a) by order of the court;

(b) by notice issued by a court officer on the authority of the court.

(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding.

21. Having considered the facts of the case and provisions on section 16 of the Sentencing and Penalties Decree I note that this is a fit case to exercise the discretion to enter a 'Non Conviction' due to its circumstances which are trivial in nature.
    
22. An order for restitution can be made under section 45(4) of the Decree as the stolen items were recovered from the accused possession.
    
23. Salote Leilani I will not record a conviction against you, although you are guilty for the offence of 'Theft'. You are ordered to restore all the items which are belonged to the complainant within 7 days from today.
    
24. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

21st May 2012