State v Katovata [2015] FJMC 83; Criminal Case 2064.2014 (15 July 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No: 2064/14

STATE

V

ALOVETA KATOVATA
SOLOMONE PIO

For Prosecution: WPC. Priti
For the 1st accuses: In person
2nd Accused: Mr.Ravuniwa

SENTENCE

1. You, Aloveta Katovata and Solomone Pioare here, to be sentenced on admission of guilt on your own accord for the offence theft Contrary to 291(1) of crimes decree 44 of 2009.
THEFT: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

2. Aloveta Katovata And Solomone Pio on the 7th day of July 2014 at Nabua in the Central Division dishonestly appropriate (stole) 8 x 12kg fitted gas cylinders valued $943.36 the property of Shop and Save Supermarket.

3. As 1st and 2nd accused; you pleaded guilty for the said charge on 25/2/2015 before this court with your own free will. This court is satisfied with your plea is unequivocal and that you understand the repercussion of your plea.

4. The summary of facts are, On the 7th day of July 2014 at Shop and Save Supermarket, Nabua, Aloveta Katovata, Accused 1, 30 years, Construction worker of Narere Squatters, and Solomone Pio Accused 2, 39 years, mechanic of Wailekutu, Lami stole 8 x 12kg filled gas cylinders valued $943.36 from the Shop and Save Supermarket PW1 and sold it to Vatuwaqa Supermarket. Accused 1 was the loading and off-loading boy and Accused 2 was the driver. Briefly on the above date, time and place Accused 1 and Accused 2 was supposed to deliver 45 x 12kg filled gas cylinders but instead they delivered 38 x 12kg filled gas cylinders. The matter was reported at Nabua Police Station where WDC 3843 Akisi was appointed to be the Investigating Officer. Accused 1 and Accused 2 was brought in for questioning and later caution interviewed and formally charged of the offence of Theft Contrary to Section 291 Crimes Decree No. 44 of 2009. Both accused admitted that the said stole items were sold for $240.000 they shared money of $120.00 each and used it for their personal use.

5. After legislating the Crimes Decree on 2009, the offence of 'Theft' stipulated in section 292 (1) prescribed a maximum penalty of 10 years imprisonment for the offence. In Tomasi Turuturuvesi v State [2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender.

6. But the tariff established for the Penal Code offence of larceny, 02 – 9 months imprisonment continued to be in existence in most of the decisions such as state v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16th May 2013) by Justice Thurairaja, State v. Ratumaijoma [2012] FJHC 1007, (4th April 2012) by Justice Madigan and State v. Lal [2012] FJHC 1333; HAC 215.2011(14th September 2012) by Justice Kumararatnum. However tariff of 2 – 3 years imprisonment was applied in Chand v. State [2010] FJHC 291, HAA 018.2010 (10th August 2010) by Justice Thurairaja by citing Chand v. State[2007] FJHC 65; HAA 20.3007 (11th October 2007).
7. 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
8. The sentencing principles for simple Theft was outlined in the case of Ratusili v State[2012] FJHC 1249; HAA011.2012 (1 August 2012). The principles are:(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.
9. both of you have committed this offence whilst been the employees of the complainant or holding position of trust. This court consider as an Aggravating Factors of this case.

10. In mitigation, you the 1 accused said that you are 30 years of age, married with 2 children, and now you are unemployed. You are the sole bread winner of the family. You are not a First offender. But since the previous conviction has dated as 2003 and you have committed this crime on 2014 this court considers you as a first offender. You are Remorseful. Promise not to re-offend. You have fully co-operated with Police at the time of interview with Police.

11. The 2 accused in mitigation said that you are 39years of age, married with 5 children. You employed as mechanic. You are a First offender. You are Remorseful. Promise not to re-offend. Seek non-conviction. You also have fully co-operated with Police at the time of interview with Police. You have sought 2nd chance to rehabilitation.

12. both of you pleaded guilty before this court and serve public moneys and time of this court. Therefore deserves a one third deducted from you sentences (if you convicted) and this stated in the case of Vilimone v State [2008] FJHC 12; HAA 131-132.2007

13. 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."

14. Primary object of sentencing and consideration of non-custodial sentence is described in Section 15(3) of Sentencing and Penalties Decree 2009 No: 42 of 2009and various case authorities.

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

15.1 accused you are afirst offender and 2nd accused you are first offender and of previous good character. In view of this court would prefer to mention Judge Nazhat Shameem in the case authority ofNariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006). Hon judge stated:

"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 preferences to imprisonment".

16. 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&#16ht to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court hasored and exhausted all other alternative sentences.

17. Suren Singh v gh v The State [2000] FJHC 264; 2 FLR 127 where the learned Justice Shameem stated that:

"However as a general rule, leniency is shown to first offenders, young offenders and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence".

18. In this backdrop, summary of facts, your early plea, your mitigation and the nature of offence, attract non-custodial sentence for you. Therefore this court based on each of yours plea of guilt convict 1st and 2nd accused as charged.

19. This court after consider the pick 24 months sentence for both of you. And for the aggravated fact add 3 months. Now your sentence is 27 months. For your early plea of guilt this court reduces 1/3 of the sentence that's 9 months and your sentence is 18 months.

20. After considering the mitigation facts especially both of you are sole bread winners of the family and first offenders it was compelled to this court to give you a second chance. Therefore this court suspends your sentence for 3 years' time. But if you committed simile offence within suspension period this 18 months sentence will be activated and run consecutively with the next sentence irrespective of date of next sentence. In addition; within 30 days from today the 1st and 2nd accuses will pay $ 150 fine each and in default 15 days of imprisonment will be applicable.

21. This order will not affect your family life or future of your children. But this would be your final chance, don't come again and beg mercy from this court.

22. Summary of this sentence

A]Based on plea of guilt 1st and 2nd accused convicted as charged;

B] sentence is 18 months. Suspend the sentence for 3 years' time subject to condition of not commit simile offence within suspension period this 18 months sentence and if failed this sentence will be activated and run consecutively with the next sentence irrespective of date of next sentence.

C] In addition; within 30 days from today the 1st and 2nd accuses will pay $ 150 fine each and in default 15 days of imprisonment will be applicable

23. 28 days to appeal.
15th July 2015, at Suva, Fiji Islands

NeilRupasinghe
Resident Magistrate