State v Sharma [2013] FJMC 236; Criminal Case 1313.12 (10 June 2013)

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

Criminal Case No: 1313/12

THE STATE

V

PRANIL SHARMA

WPC Ana for prosecution
Accused in person
Date of Sentence: 10.06.2013

SENTENCE

1. PRANIL SHARMA, you have been convicted on your own plea of guilty of six (6) counts of theft contrary to section 291 of the Crimes Decree.
   
2. On or about 12 September 2012 you stole the BSP ATM Card valued at $10.00 and withdrew money on various occasions amounting to $10,450.00, the property of Satya Nand, the complainant.
   
3. On 11 September 2012 complainant met you at Martintar and you convinced him to go to Kactri Apartment. He booked a room. While in the room you asked the complainant for drink. He said he didn't have money and he cannot withdraw from ATM as he had already withdrawn to the limit. You then told him that you know some place where he can withdraw some money. You took him to Nadi Back road total service station where he made a withdrawal of $500.00 using the swap machine. At that time you had noted his PIN number. Afterwards the complainant bought some chaser and came to Martintar to buy liquor. At Martintar he bought some rum and cola and came back to the room at the Kastri Apartment. Where both of you had liquor and ate chaser. After that you massaged him and he fell off to sleep.
   
4. At around 2.00am you stole the complainant's ATM card and $300.00 money from his pocket and fled the scene. You then went to the Westpac ATM at Namaka Lane and withdrew $1000.00 cash. Thereafter you went to Lautoka Lotus Foreign Exchange and using the same card made a transfer of $9,000.00 through Money Gram to Westpac Lautoka branch where you collected the money and went to Suva. You also used the card for shopping at Shop & Save and obtained money from MH Express, Nadi. You admitted committing these offences during caution interview. The money stolen was not recovered.
   
5. Premeditation, breach of trust of the complainant (your friend), loss caused to the complainant, total lack of respect towards property right of others and the law aggravated the offending.
   
6. Your mitigations are that your early guilty plea, previous good character, remorse and personal circumstances.
   
7. Mr. Pranil Sharma, you are 24 years of age, single and a part time domestic worker. You are looking after your grandmother aged 84 years. You seek leniency of the court.
   
8. The offence 'Theft' carries a penalty of 10 years imprisonment according to section 291-(1) of the Crimes Decree 2009.
   
9. 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.
      
10. I therefore, considering all, in your case would pick 18 months imprisonment on each count. Add 12 months to reflect the aforesaid aggravating factors. Reduce the sentence by 10 months in view of your early guilty plea. You pleaded guilty to the charges in the earliest possible instance. I deduct 4 months for your previous good character. I deduct another 3 months for your mitigation. I note that you have been in remand custody since 29. 11. 2012. I therefore discount further 6 ½ months for the period spent in remand custody. Your final sentence on each count is 6 ½ months imprisonment. These offences had been committed in the same sequence and against the same complainant. I order you serve these sentences concurrently with each other hence in total you must serve 6 ½ months imprisonment.
    
11. I don't fine any special circumstances to suspend your sentence. Custodial sentence is warranted by the nature of offending. I therefore decline to suspend the sentence.
    
12. Twenty eight (28) days to appeal.
    

ORDER

13. I make the following order:
    

PRANIL SHARMA, you are hereby sentenced to 6 ½ months imprisonment.

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

Dated at Nadi this 10th day of June 2013.