State v Seru [2015] FJMC 32; Criminal Case 206.2015 (9 March 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No. 206/15

STATE

-v-

FILIMONI SERU

For Prosecution: CPL Luke
The accused: in person.

SENTENCE

1. You, FILIMONI SERU, are here, to be sentenced on admission of guilt on your own accord for the following offences namely: DAMAGING PROPERTY: Contrary to Section 369 (1) of the Crimes Decree No. 44 of 2009 & THEFT: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009

FILIMONI SERU On the 20th day of January , 2015 along Desvouex Road Suva in the Central Division wilfully and damaged the front left window of vehicle registration number NJJSN valued at $250.00 the property of Noa Niubalavu Junior and you on the same day at the same place and time dishonestly appropriated [stole] 1 bag containing military uniform, 1x GPS tracker valued at $1,000.00 and cash $ 80.00, personal documents to the total value of $1,080.00 the property of Noa Niubalavu Junior.

The Fact

2. Summary of facts which you have already admitted says;

The accused FILIMONI SERU aged 25 years, unemployed, of salato road settlement; Namadi Heights;

Count One: Damaging Property

On the 20th day of January 2015 along Desvouex Road Suva in the Central Division wilfully and damaged the front left window of vehicle registration number NJJSN valued at $250.00 the property of Noa Niubalavu Junior.

Count two: Theft

On the 20th day of January, 2015 along Desvouex Road Suva in the Central Division dishonestly appropriated [stole] 1 bag containing military uniform, 1x GPS tracker valued at $1,000.00 and cash $ 80.00, personal documents to the total value of $1,080.00 the property of Noa Niubalavu Junior.

3. I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I convict you for 1st and 2nd counts as charged.

The Law

4. Maximum penalty could be imposed for damaging property is 2 years imprisonment. Maximum penalty could be imposed for theft is 10 years. Punishment for malicious injuries in general

The section 369(1) of Crimes Decree Number 44 of 2009 is statutory provision of Damaging Property which could be mentioned as follows;

"Sec: 369. — (1) A person commits a summary offence if he or she wilfully and unlawfully destroys or damages any property.

Penalty — Imprisonment for 2 years, if no other punishment is provided under any other provision of this section."

The section 291(1) of Crimes Decree Number 44 of 2009 is statutory provision of the Offence of Theft and relevant other interpretations of the same could be mentioned as follows;

"Sec: 291. — (1) A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.

Penalty — Imprisonment for 10 years.

(2) for the purposes of this Decree an offence against sub-section (1) is to be known as the offence of theft.

Special rules about the meaning of dishonest

"Sec: 292. — (1) for the purposes of this Division, a person's appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) Sub-section (1) does not apply if the person appropriating the property held it as trustee or personal representative.

(3) for the purposes of this Division, a person's appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property".

Appropriation of property

"Sec: 293. — (1) for the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property.

(2) Sub-section (1) applies to a case where a person obtains possession of property (innocently or not) without committing theft, and there is a later assumption of rights without consent by keeping or dealing with it as owner.

(3) for the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor's title, amount to an appropriation of the property".

5. Tariffs vary the gravity and nature of these offences. In a recent case of State v Eparama Nagalu and Others, [2010] FJHC 209; HAC122.2008S (24 June 2010) In Paragraph 23, all four Accused are sentenced to 9 months imprisonment as count for Damaging property.
6. in Kaloumaira v. State (2008) FJHC 63 it was held the tariff for simple larceny to be 6 – 12 months imprisonment and in the case of Vaniqi v. State [2008] FJHC 348 held the tariff for simple larceny with a previous conviction to be over 9 months imprisonment. Justice Temo in the case of State v. Koroinavosa [2013] FJHC 243; HAC 059(B).2010S (17th May 2013) identified the tariff for the offence of theft to be from a suspended sentence to 3 years imprisonment. Justice Madigan in the case of Ratusili v. State [2012] FJHC 1249; HAA011.2012 (1st of August 2012) and formulated certain guidelines in an effort to reconcile the existing ambiguities. "From the cases then the following sentencing principles are established:
(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."
7. No facts were revealed by the summary of facts placed before the court as aggravate facts except that you have been convicted for same or similar offences three (03) times within past 7 years since year 2008.
8. In mitigation, you said you are 25 years; married with 1 child (6 months old).you are unemployed. You have seek forgiveness and stated you have learned a lesson. You sought leniency of this court. You promised not to re-offend. You added that you can't pay damages as you unemployed. You pleaded guilty for the charge at the first instance.

9. You are not a first offender. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.Section 4(2) provides;" In sentencing offenders a court must have regard to:—

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

The Sentence

10. This court noticed that rehabilitation is an impossible task with you. The main aspect of the legalised punishment is rehabilitation which must balance with public safety; but when the rehabilitation fails the protection of the public is the sole paramount consideration and therefore you deserves custodial sentence.

11. Considering the value of stolen items and your previous convictions I pick 6 months imprisonment for the offence of damaging property and 21 months imprisonment as my starting point of sentence. And for the early plea I reduced 1/3 out of the sentence and now its 4 months and 14 months respectively. I cannot see any other considerable mitigation. Further in line with the above sentencing principles and guidelines, these sentences will run concurrently.

Count 01: Damaging Property: 4 months imprisonment
Count 02: Theft: 14 months imprisonment both sentences will run concurrently

12. 28 days to appeal.

On 9th day of March 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate