State v Pillay [2013] FJMC 97; Criminal Case 13.2010 (28 February 2013)

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

CRIMINAL CASE NO: 13/2010

STATE

V

JITENDRA MANI PILLAY

Cpl Francis for prosecution

Accused in person

Date of Sentence: 28.02. 2013.

SENTENCE

1. You, JITENDRA MANI PILLAY, were convicted after trial for one count of larceny of cattle contrary to section 275 of the Penal Code.
   
2. You stole a calf valued at $200.00, the property of Ramesh Chand, the complainant and kept in your possession without any manner of right.
   
3. Premeditation, total lack of respect of the property rights and personal enjoyment of property right of the complainant and the law and stealing poor farmer's source of income aggravated the offending.
   
4. You referred me to your family background in your mitigation. Also stated that you are 29 years old, single and looking after your family including your handicapped brother. You are a first offender and seek apology and forgiveness.
   
5. The offence of larceny of cattle carries a maximum penalty of 14 years imprisonment pursuant to section 275 of the Penal Code.
   
6. On a charge of stealing a bull valued at $300, 2 year sentence reduced to 15 months where magistrate may not have taken into account mitigating circumstances: per Pathik, J in Aborosio Ikanidevo v State [2002] HAA 7/02B (apf MAC 331/01 Tvni).
   
7. On a finding a heifer with no brand on it appellant with 12 previous convictions for larceny of cattle knew it did not belong to him and took no reasonable steps to find the owner but sold it for $400.00. from a starting point of 12 months, consider aggravating factors, value of heifer, that heifer was removed from a fenced farm, benefit to appellant, failure to find owner; mitigating factors: early guilty plea, age and remorse, thus 18 months imprisonment within tariff [Brij Basi Singh v Reginam (1971) 17 FLR 65, per Gould, VP, Marsack & Richmond, JJA].
   
8. Taking all into my account, in your case I would pick 12 months imprisonment as my starting point. I add 5 month to reflect the above aggravating factors. I deduct further 3 months for your previous good character. I deduct further 3 months to reflect your mitigation. Your final term of sentence is 11 months imprisonment.
   
9. I am mindful of the fact that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.
   
10. The question of suspension being reserved for the young first offender as Shameem,J indicated in the case of Tomasi Turuturuvesi V State [2002] HAA 86/02S 23 December 2002.
    
11. You are a first offender and 29 years of age. In mitigation you told you are looking after your mother and your incapacitated brother. You seek forgiveness of the court. In the circumstances I suspend your sentence for a period of four (4) years from today.
    
12. You must not re-offend during the operational period of the suspended sentence.
13. 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.
    
14. Twenty eight (28) days to appeal.
    

ORDER

15. I make the following order:
    
    • (a) You are hereby sentenced to eleven (11) months imprisonment suspended for four (4) years from today
      

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 28th day of February 2013.