IN THE MAGISTRATE'S COURT AT SUVA
Criminal Case No. 544/2015

STATE

V

PENI RATU
SEMESI TATAGIA

For Prosecution: Cpl.Luke
For the 1stand 2nd accuses: in person

SENTENCE

1. You, Peni Ratuand Semesi Tatagia, are here, to be punishing on admission of guilt on your own accord for the following offence namely: 

FIRST COUNT
THEFT: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

Peni Ratu and Semisi Tatagia on the 11th day of March 2015 at Suva in the Central Division dishonestly appropriated (stole) 4 x Farmers Style Corned Mutton valued at $16.96 the property of Mobil Service Station with the intention of permanently depriving the property of Mobile Service Station.

2. This court is satisfied with your pleas are unequivocal and that you understand the repercussion of your pleas. I am further satisfied the facts of this case present, included and proved every elements of this offence. Therefore, the1st and 2nd Accuses is found guilty to the charge. 

3. You have admitted the below mentioned Summary of facts at the date of plea on 5/8/15.That on 11/3/15 at about 6.51am at Mobil Service Station, Victoria Parade, Suva Sakiusa Nagata A1, 25 years, security of Tacirua 5½ miles, Suva went to change his clothes in the changing room at the said.When A1 entered the shop he was informed by Amelia Lagi A2, 29 years, cashier of Lami Village, Suva that she saw Peni Ratu B1, 28 years, unemployed of Kalabu Housing and Semisi Tatagia B2, 29 years, shoe shine of Raojibhai Street, Suva stole 4 x tins of Farmers Style Corned Mutton valued at $16.96 the property of Mobile Service Station.A2 was busy serving a customer when B1 and B2 entered the shop and stole the items from its shelves. After serving the customer, then A2 looked outside then she saw them outside the shop as she suspected that they have done something.A2 went to check the CCTV and found B1 and B2 stole the items.Then A1 went outside the shop to check them then he saw B1 and B2.A1 searched them and found the stolen items in their possession.A1 took the items from them and reported the matter at Totogo Police Station where B1 and B2 were arrested by PC 4952 McDonald A3.The B1 and B2 were interviewed under caution and they admitted the allegation. The B1 and B2 have been charged for the offence of Theft Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.The B1 and B2 will be appearing in custody today 12/3/15

4. Maximum penalty could be imposed for 1stcharge is 10 years imprisonment. Justice Temo in the case of State v. Koroinavosa [2013] FJHC 243; HAC 059(B).2010S (17th May 2013) identified the tariff to be from a suspended sentence to 3 years imprisonment. In the above context this court can identify the application of following tariffs 'for the offences of 'larceny' and 'theft' by the parallel courts under the old and new regimes.

Penal Code Tariffs (Larceny)

 (a) 2 to 9 months imprisonment
 (b) 2 to 3 years imprisonment
 (c) 6 to 12 months imprisonment

Crimes Decree Tariff (Theft)

 (a) 2 to 9 months imprisonment
 (b) 2 to 3 years imprisonment
 (c) Suspended sentence to 3 years imprisonment

5. 1st accused have no previous convictions at the time of committing this offence. But 2nd accused has 7 convictions on similar offence. This is an aggravating factor.

6. The 1staccused stated in mitigation, that you are 28 years of age, married with 1 child and employed as a farmer. You earns on an average of $60.00 per week. You Promise not to re-offend. You have fully co-operated with Police. You seek suspended sentence. 

7. The 2nd accused in mitigation, you said that you are 29 years of age, married and employed as a farmer. You earns on an average of $150.00 per week. You are Remorseful. You Promise not to re-offend. You have fully co-operated with Police. 

8. You pleaded guilty for the charge at the first instance. Therefore, you are entitled for reduction of your sentence. Normally, exercising court's discretion, superior courts have followed 1/3 reduction for early plea. (as set out in VeretarikiVetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and AlikiVilimoni vs State, FJHC 12; HAA 131-132, 2007. )

9. In Prasad v The State[1994] FJHC 132; Haa0032j.94s (30 September1994) S W Kepa J enunciated that the fact that Appellants are first offenders ought to be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences. 

10. Further at Prasad v The State[1994] FJHC 132; Haa0032j.94s (30 September1994)Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

11. It has been noted inPrasad v The State[1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first offender is concerned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself.

12. Singh v The State[2000] FJHC 115; Haa0079j.2000s (26 October 2000) Shameem J went on saying;

"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."

13. Nariva v The State[2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shameem J again stressed; "The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. 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."

14. In this legal backdrop, summary of facts and your mitigation and the nature of offence, bot accuses attracts custodial sentence. This court enters conviction for the 1stand 2ndaccused. 

15. This court select 18 months imprisonments as starting point for 1st accused. For the early plea reduced 6 months. Now it is 12 months and for the mitigation and time spent at remand I further reduce 3 months. Now it is 9 months. I suspend the same for 3 years' time. These 9 months will run consecutively to next sentence if you committed another similar offence during this 3 years' time period and convicted. 

16. This court select 24 months imprisonment for 2nd accused. For the early plea reduced 8 months. Now it is 16 months and for the mitigation and time spent at remand I further reduce 3 months. Now it is 13 months. I suspend 5 months out of the same for 3 years' time and you will serve 8 months. The suspended 5 months will run consecutively to next sentence if you committed another similar offence during this 3 years' time period and convicted. 

17. 28 days to appeal.

On 17th Sep 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate