State v Lomasalato [2016] FJMC 118; Criminal Case 62.2016 (15 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 62/2016

STATE

V

LUKE LOMASALATO
NEMANI TAGANECA

For the Prosecution : Cpl Shaw

The Accused : In persons

Date of Sentence : 15^thof August 2016

SENTENCE

1. LUKE LOMASALATO, NEMANI TAGANECA, you both were charged with one count of Theft, contrary to section 291(1) of the Crimes Decree.
2. You both pleaded guilty and admitted the summary of facts presented by the Prosecution. According to facts this in incident happened in Taveuni . Between the 26^th July to 27^th July 2016 you both stole 41 plants of yaqona valued at $1800.00 from the farm of the complainant. The police arrested you and recovered the stolen items.
3. I am satisfied about your pleas were voluntarily and unequivocal .Accordingly I convict you both for this offence.
4. Maximumpenalty for Theft is 10yearsimprisonment.
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. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

7. This is not a simple theft and growing menace in Taveuni at the moment. Stealing yaqaona from the farms is prevalent discouraging the farmers from their trade. Hence considering the objective seriousness of the offence, I select 14 months as my starting point.
8. The aggravating factor is stealing from farm but as I have considered that in selecting the starting point I would not enhance the sentence.
9. In mitigation you both submitted the following :

1^st accused

1. 25 years old ;
2. Married with a child;

100. Seeking forgiveness

4. First offender;
5. Items recovered.

2^ndaccused

1. 19 years old;
2. Single ;

100. First offender;

4. Items recovered.

10. For these mitigating factors I deduct 03 months to reach 11 months imprisonment.
11. When an accused pleaded guilty at the first available opportunity it is accepted practice to give 1/3 deduction to concede saving court time and resources. Following this principle, I also deduct 1/3 from both of your sentences to reach 08 months imprisonment.
12. Now I have to consider whether to suspend the sentence. You both are young offenders and first offenders. You both pleaded guilty at the first available opportunity and all the stolen properties were recovered.
13. Hence in my view the main purpose of your sentence is allowing you both chance to rehabilitate.
14. LUKE LOMASALATO, NEMANI TAGANECA, I sentence you both to 08 months imprisonment for the offence of Theft contrary to section 291(1) of the Crimes Decree and suspend this for 03 years.
15. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Decree.
16. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate