State v Krishna [2013] FJMC 133; Criminal Case915.2011 (4 April 2013)

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

CRIMINAL CASE NO: 915/11

STATE

V

NENTRA DEVI KRISHNA

Cpl Ana for prosecution
Ms. Jiuta (LAC) for Accused.
Date of Sentence: 04.04. 2013.

SENTENCE

1. You, NENTRA DEVI KRISHNA, are charged with 34counts of theft contrary to section 291 [1] of the Crimes Decree No.44 of 2009.
   
2. You had pleaded guilty to the charges and admitted summary of facts submitted by the prosecution. I have reviewed the facts against the particulars of the charges laid in the information by the prosecution against you, and I am satisfied that it support the essential ingredients of the charges. I therefore convict you as charged.
   
3. The outline of facts admitted by you confirms that on 34 different occasions you withdrew money from the complainant's account at BSP through ATM. The complainant, your father gave his BSP ATM card to you on the understanding that you will be making payment towards the family loan at the bank. You started to withdraw the money from your father's bank account totalling to $3,350.00 and utilized the money for your own purpose instead of making loan repayment. Under caution you admitted committing the offence.
   
4. Premeditation, breach of the trust of your father, total lack of respect of your father's property right and the law and loss caused to the complainant aggravated the offending.
   
5. Your counsel referred me to your family background in your mitigation. Also stated that you are 36 years of age, a widow with 2 children aged 18 and 16 respectively. You are unemployed and seek apology and leniency.
   
6. The offence of theft carries a maximum penalty of 10 years imprisonment pursuant to section 291 of the Crimes Decree.
   
7. 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Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.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.
      
8. In your case I would pick 18 months imprisonment on each count of theft as my starting point. I add 9 months to reflect the above aggravating factors. I deduct 9 months for your early plea of guilty, you pleaded guilty to the charges in the earliest possible opportunity. I deduct further 5 months for your previous good character and mitigation. Your final term of sentence on each count of theft is 13 months imprisonment. Considering the totality principle I order that you serve these sentences concurrently with each other hence in total you must serve 13 months imprisonment.
   
9. I note that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.
   
10. In the case of Nariva v The State [2006] FJHC6; HAA0148J.2005S (9 February 2006) Madam Justice Nazhat Shameem stated:
    

"Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

11. In the case of Prasad v State [1994] FJCA 19; Aau0023.93S, Fiji Court of Appeal held that:
    

"... courts ought to bend backwards to avoid immediate custodial sentence for first offenders.

12. You are young first offender and remorseful. You promised to court that you won't re-offend. By making part payment of the money stolen you have shown genuine remorse. Also your counsel told me that you are currently suffering from a medical condition which requires you to undergo a hip replacement and that you are unable to make complete restitution. In the circumstances I suspend the sentence for a period of years from today.
    
13. You must not re-offend during the operational period of the suspended sentence.
    
14. If you re-offend during the operational period of the suspended sentence of imprisonment, you are liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.
    
15. Twenty eight (28) days to appeal.
    

ORDER

16. I make the following order:
    

(a) You are hereby sentenced to 13 months imprisonment suspended for 03 years from today.

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

Dated at Nadi this 04th day of April 2013.