State v Turuva [2013] FJMC 45; Criminal Case 1391.12 (30 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 1391/12

STATE

V

VATILIAI TURUVA

Prosecution : Sgt Jitendra, Police Prosecutor.
Accused : In person.

SENTENCE

1. You, Vatiliai Turuva is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 07.12.2012, 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 the Suva Magistrate's Court as a Court Sheriff. On 30.03.2010 Mr Atish Narayan Finance officer of Coca-Cola Fiji Limited has entrusted you with a cash cheque of $ 1,826.95. The payment was made pursuant to an order of the Small Claims Tribunal in the case of 0887/2009. According to the order, the money was to be paid to Suva Forklift Hire Limited.
   
4. One week later on 07.04.2010 you were told and authorised by the Senior Court Officer to change the cheque as the registry only accepts cash payments. You then cashed the cheque but did not return the money to the registry. You went home that day and on your way, met some of your friends at a Night Club in the city. Then you consumed liquor with them. You were heavily drunk and the money went missing from your possession.
   
5. Later on 10.06.2010 Ms Reenam Chand the Officer in Charge of Civil registry inquired and demanded you to produce the file as there was a request of payment by the Suva Forklift Hire Limited. You informed her that you are not aware of the matter. The matter was reported to Senior Court Officer and she too tried to contact thrice on your mobile. Having failed the attempts a report was lodged at the police station.
   
6. It is regrettable to note that the police took two years to complete the investigation. The arrest of the accused was made on 02.10.2012. You formally admitted the offence in your caution interview.
   
7. 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'.
   
8. 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2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.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) The60;ofe summoney and thefts&#16brin breach each each of trust, whether first offence or not can attract sentences of up toe years.

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

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

9. Accordingly, in this case, I select 08 months imprisonment as tartiint for your sentence.
   

AGGu>AGGRAVATRAVATING FACTORS

10. You worked in the capacity of a Sheriff Officer of the Court. You deliberately suppressed and did not report the matter to the higher officials after the incident. It came to light after two months and then you tried to evade from responsibilities by saying that you are not aware of the file. Breach of trust which was reflected form your act undoubtedly aggravate the offending. Another 8 months is added to your sentence.
    
11. Now your sentence stands at 16 months.
    

MITIGATING FACTORS

12. In mitigation, you stated to Court that you are 24 yrs old; First offender; married with child; remorseful; and willing to pay back the total amount.
    
13. 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)
    
14. Another one month is deducted to reflect your above personal circumstances.
    
15. Therefore, your final term of imprisonment now stands at 10 months.
    
16. 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,
    
17. The court notes that you had not shown any respect to the law and regulations of the Judicial Department as an officer of the court. On the same note it is doubtful to conclude whether the accused is genuinely remorseful for the act as he had sufficient time to express the same by paying the amount back to the Department. Therefore the court cannot act lightly on the offenders who affect the Government Departments.
    
18. At the same time the court has to consider the adverse effect of committing a first young 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.
    
19. The Sentencing and Penalties Decree 2009 provides procedure to partly suspend a term of imprisonment. Section 26 (1) specific on this matter.
    
20. Having considered the circumstances I note that the appropriate action for you is a partly suspended sentence.
    
21. 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.
    
22. 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.
    
23. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

30th January 2013