State v Tuinakelo [2014] FJMC 20; Criminal Case 320.2013 (6 February 2014)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 320/13

BETWEEN:

THE STATE

AND:

RATU KIDA TUINAKELO & JOTI LUTUNAIVALU

Prosecution: WPC Poonam
Accused: Both In Person

SENTENCE

1. Ratu Kida Tuinakelo & Joti Lutunaivalu you both pleaded guilty voluntarily to theft contrary to section 291(1) of the Crimes Decree No. 44 of 2009.
   
2. Both of you admitted the charge and facts tendered by prosecution.
   
3. The Court is satisfied that your guilty plea is unequivocal and you are convicted as charged.
   
4. Between 1/4/12 and 30/4/12 at Burelevu Village you Ratu Tuinakelo and another went and uprooted 30 yaqona plants worth $1800.00 belonging to Neori Tamanivalu from his farm. The yaqona plants were then taken down to a river to be washed and whilst washing the plants, you Joti Lutunaivalu came along. You also assisted in washing the yaqona and being told not to relay the incident to anyone. The next day the two of you with another came to town to sell the yaqona and then you spent the money on liquor.

The matter was reported to police and upon investigations the two of you were arrested, caution interviewed and charged for the alleged offence.

5. Both of you mitigated and I consider the following in your favor:
   • First Offenders.
   • Guilty pleas.
   • Remorseful and requested for leniency.
     
6. The following features I would regard as aggravating:
   • Breach of trust.
   • Benefit derived from the offence.
     
7. Theft under the Crimes Decree carries a maximum imprisonment term of 10 years.

The guideline in case authorities suggest that tariff for theft ranges from 2-9 months for 1st convictions and between 9 – 24 months for 2nd convictions depending on the value of the goods and circumstances of the stealing. (see: State v Saukilagi [2005] FJHC 13; Ronald Vikash Singh v State HAA 035 of 2002)

8. The offending in this case cannot be regarded as a simple theft matter. The courts have always viewed livestock and crop or farm theft as serious because of the public interest factor involved. Most farmers rely on livestock and crops to support and improve their livelihood. Thus the court will not deal leniently with those engaging in livestock, crop or farm theft.
   
9. His Lordship Judge Goundar stated in the recent Labasa case of State v Filipe Ratusuka & 8 Others Criminal Appeal No. HAA001/2013, at paragraph 17 "Farm theft is considered a serious offence because of the value that the commodities bring to the farmer and the community. For this reason, theft of cattle, goats, livestock and root crops from farming community is usually punished by custodial sentences to deter the offenders and others from engaging in this type of conduct in the future (Sateo Tuta v State [2002] HAA 5/02B, Abdul Afiz v State [1990] HAA 0011 & 12/89S, Jone Naca v State HAA016/-02S, Penisoni Waqa v State [2004] HAA 101/04L)."
   
10. In considering the circumstances of the offending in this case I take a starting point of 18 months.
    
11. For the aggravating factors I increase your sentences by 2 months. Your sentences are now 20 months imprisonment.
    
12. For your mitigation and this being your first offences I reduce your sentences by 4 months. For your guilty pleas I further deduct the sentences by 6 months. Your sentences are now 10 months imprisonment each.
    
13. I now consider whether to suspend your sentences. You are first offenders no doubt however the offence is prevalent in community a deterrent is clearly warranted. The case authority noted above shows that the Courts usually regard farm theft as serious and a custodial sentence is warranted in the public interest. The loss suffered by the complainant cannot by village standards be small. The 30 plants of yaqona would have fetched complainant $1800.00 and this would have assisted him in his livelihood and the livelihood of others who rely on him. Further I don't see any exceptional circumstance to wholly suspend your sentences. In the opinion of the Court it would be appropriate that you both serve part of your sentences in prison and part to be suspended for your rehabilitation.
    
14. This sentence should send out a clear warning to others in community who may have similar impulses.
    
15. I order that you each serve 5 months in prison. The remainder of 5 months will be suspended for 2 years.
    
16. If any of you commit any offence within the period of 2 years, you'll be charged for breaching the suspension order and if convicted, you'll be made to serve the 5 months with any other penalty imposed in that other offence.
    
17. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

6th February 2014