State v Senivono [2013] FJMC 102; Criminal Case 250.2013 (5 March 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 250/13

STATE

V

MEREWAI SENIVONO

• Sgt Jitendra, Police Prosecutor for the Prosecution.
• Accused appeared in person.
  

SENTENCE

1. You, Merewai Senivono are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this court on 07.02.2013, 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. Agreed facts states that at the time of the alleged incident you employed at Mr. Atish Patel's house as a house girl. He had gone to New Zealand on 25.01.2013 and upon his return he has found that $ 2,300 had been missing from his bedroom. You have later admitted of stealing the money. Matter was then reported to police and you were interviewed under caution. You have made a formal admission to the offence in your caution interview.
   
4. Aforementioned facts were admitted by you and the court notes that your plea is free from any force, threat or promise. This court convicts you for the offence of 'Theft'.
   
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2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
   

(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) In Ratusili v State [2012] FJHC 1249 Hon Justice Madigan held,

"From the cases then the following sentencing principles are established:

(i) for a first offence of simple theft the sentencing rangeld be d be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Th160;oge su money and thefts&#1 b;in breachreachreach of trust, whether first offence or not can attract sentences of up tee years.

(iv) regard should be had to the nature of the relationship between oeen offender and victim.

(v) planned thefts willact greater sentences nces than opportunistic thefts ".

6. Accordingly, in this case, I select 08 months imprisonment a starpoint for your sentence.
   

A>AGGRAVGGRAVATING FACTORS

7. You have worked under the complainant and breach of trust which was reflected form your act undoubtedly aggravate the offending. Another 8 months is added to your sentence.
   
8. Now your sentence stands at 16 months.
   

MITIGATING FACTORS

9. In mitigation, you stated to Court that you are 31 yrs old; First offender; married with four children; remorseful; 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 1/3 [5 months] of your term of imprisonment which now stands to 11 months. (Akili Vilimone v State, Cr. App. HAA 131/2007)
    
11. Another one month is deducted to reflect your above personal circumstances. Therefore, your final term of imprisonment now stands at 10 months.
    
12. 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,
    
13. The court notes that you had not shown any respect to the person who had given you the employment. It was further submitted that you have spent the total stolen amount with your friends. Therefore it cannot be considered as a trivial offence.
    
14. At the same time the court has to consider the adverse effect of committing a first offender to a prison with cluster of hardcore criminals. Purpose of rehabilitation would not always meet at the correction centers. Thus it is apparent that there should be some balance between the two above discussed positions.
    
15. The Sentencing and Penalties Decree 2009 provides procedure to partly suspend a term of imprisonment. Section 26 (1) specific on this matter.
    
16. Having considered the circumstances I note that the appropriate action for you is a partly suspended sentence.
    
17. Therefore the court orders to suspend 9 months of your sentence to a period of 3 years. You will serve the remaining one month in a correction center with counselling and training facilities.
    
18. You will be released after the completion of the sentence of one month. Thereafter if you commit any offence during the period of suspension, there will be a separate action against you for the breach of suspended sentence. And also you will be liable to serve the 9 months period which was suspended by this Court.
    
19. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

05th March 2013