State v Nair [2015] FJMC 120; Criminal Case 1632.2015 (18 November 2015)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1632/2015

STATE

V

ASHITOSH NAIR

For Prosecution: PC Joshua
For Accused : Ms. A. Singh (LAC)
Date of Sentence: 18th of November 2015

SENTENCE

1. ASHITOSH NAIR , you were charged in this Court for 2 counts of Theft contrary to section 291(1) of the Crimes Decree.
   
2. You pleaded guilty and also admitted the summary of facts. According to facts on 12th September 2015 you stole cash of $100 from your employer (AUTO CARE FIJI LTD). Again on 18th September 2015 you stole cash of $651.00 from your employer.
   
3. I am satisfied about your plea and convict you for this charge.
   
4. The maximum penalty for Theft is 10 years imprisonment.
   
5. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said:
   

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

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

(v) planned thefts will attract greater sentences than opportunistic thefts.

6. Aggravating factor common to both counts is breach of trust as you stole from your employer.
   
7. Mitigating factors are early guilty plea, first offender seeks forgiveness and full restitution..
   
8. Considering the gravity of offending, I select 07 months as starting point for each count and add 10 months for the aggravating factor to reach 17 months. For the mitigating factors deduct 03 months and for the early guilty plea deduct 1/3 to reach 10 months imprisonment.
   
9. The learned counsel has cited in her submission the State v Raymond Roberts HAA0053 of 2003S, her Ladyship Justice Shameem held:
   

" the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".

10. The above dictum is relevant to this case. Even though there is breach of trust your early guilty plea, co-operation with the police and full restitution deserves a non-custodial sentence.
    
11. Accordingly I sentenced you to 10 months imprisonment for each count of Theft and suspend that sentence for 02 years.
    
12. If you commit any offences during next 02 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
13. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate