State v Berwic [2013] FJMC 132; Criminal Case 313.2012 (3 April 2013)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: 313/12

STATE

V

ULUILAKEBA COANILAWA BERWIC

Cpl P. Chand for prosecution
Accused in person
Date of Sentence: 03.04. 2013.

SENTENCE

1. You were charged with one count of Theft contrary to section 291 [1] of the Crimes Decree No.44 of 2009.
   
2. You had pleaded guilty to the charge and admitted summary of facts submitted by the prosecution. You confirmed that was your free will.
   
3. I have reviewed the facts against the particulars of the charge laid in the information by the prosecution against you, and I am satisfied that it supports the essential elements of the charge. I therefore convict you as charged.
   
4. The outline of facts admitted by you confirms that between November 2011 and March 2012 you stole assorted clothes and bags and an office chair all to the total value of $6185.30, the property of Universal Product Ltd.
   
5. The Manager of the factory, Mr. Muni Kumar on 27.03.2012 notice a Fijian boy wearing a vest ¾ surf shorts stolen from the factory. He informed the police of this. The boy stated to police that you gave the clothes to him. You were then arrested and under caution you admitted committing the offence. Items worth of $2,804.30 were recovered upon search of your house and your room at the Factory. You told police that you are keeping some of the stolen items at your house and at your room at the factory. You had committed this offence while working at the Factory as a printer.
   
6. Premeditation, breach of the trust of the employer, total lack of respect towards property right of the employer and the law and loss you caused aggravated the offending. Items worth $2,828.00 were not recovered.
   
7. Your personal circumstances, early guilty plea, previous good character and cooperation with police which led to recover the stolen items valued at $2,828.00 and remorse were your mitigations.
   
8. Your counsel referred me to your family background in mitigation submitted on your behalf. Also stated that:
   
   1. You are 34 years of age and single.
   2. You are currently unemployed however you have gone job interviews.
   3. You live with your steps mother in Navo, Nadi.
   4. Your step mother is dependent on you for her livelihood.
      
9. You seek forgiveness from the court and promise that you will not re-offend.
   
10. The offence of theft carries a maximum penalty of 10 years imprisonment pursuant to section 291 of the Crimes Decree.
    
11. The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
    
    1. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490).
       
    2. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.
       
    3. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.
       
12. In your case I would pick 18 months imprisonment as my starting point. I add 9 months to reflect the above aggravating factors. I deduct 9 months for your early plea of guilty. I deduct further 6 months for your previous good character and mitigation and cooperation with the police. Your final term of sentence is 12 months imprisonment.
    
13. You are a first offender and remorseful. You promised to court that you won't re-offend.
    
14. You got a serious breach of trust case. Non-custodial sentence is not appropriate in your case. However, I have discretion to order that the offender serve a term of imprisonment partly in custody and partly in the community pursuant to section 15-(b) of the Sentencing and Penalties Decree, No. 93 of 2009. I therefore, considering all into my account, order that you serve 5 months of your sentence as immediate custodial sentence and suspend the rest of the sentence (07 months imprisonment) for a period of three (3) years from today.
    
15. You must not re-offend during the operational period of the suspended sentence. If you re-offend during the operational period of the suspended sentence of imprisonment, you will be liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.
    
16. You have twenty eight (28) days to appeal.
    

ORDER

17. I make the following order:
    

(a) You are hereby sentenced to 12 months imprisonment in that you will serve 5 months as immediate custodial sentence and the rest of the sentence (07 months) has been suspended for a period of 03 years from today.

.................................................
M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 3rd day of April 2013.