State v Kumar [2016] FJMC 26; Criminal Case 182.2016 (2 March 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 182/2016

STATE

V

NILESH KUMAR

For the Prosecution: PC Shaw
For the Accused : Ms.A.Singh (LAC)
Date of Sentence: 02nd of March 2016

SENTENCE

1. NILESH KUMAR, you were charged in this court with one count of Theft contrary to section 291(1) of the Crimes Decree.
   
2. You pleaded guilty for this charge and also admitted the summary of facts. According to facts whilst working as a truck driver for the complainant company you stole 20 wooden pallets belonged to them. You were arrested and admitted to the police of the offence and the items were recovered.
   
3. I am satisfied about your plea and convict you for this charge.
   
4. In the United Kingdom the maximum penalty for theft under the Theft Act of 1968 is 07 years imprisonment and UK Sentencing Guidelines said the starting point of Theft of less than £ 2000 is a community order and the sentencing range is fine -26 weeks custody.
   
5. But in Fiji under the Crimes Decree maximum penalty for Theft is 10 years imprisonment and 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. You are an employee of the complainant and using the trust committed this offence. Therefore I select 14 months as the starting point.
   
7. The aggravating factor is breach of trust but since I have considered this in selecting the starting point I would not enhance your sentence based on that.
   
8. Mitigating factors as submitted by the defence counsel are first offender, items recovered, young offender.
   
9. In a breach of trust offence I do not think good character would be a relevant factor. But for other mitigating factors I deduct 02 months to reach 12 months imprisonment.
   
10. Your guilty plea at the earliest opportunity needs credit and for that I deduct 1/3 to reach 08 months imprisonment.
    
11. It has been held in Fiji that for a breach of trust offence a custodial sentence maybe avoided only if an accused pleaded guilty early and made full restitution(State v Raymond Roberts ( HAA0053 of 2003S). In this case you have complied with these requirements and also your co-operation with the police can be considered as another advantage factor.
    
12. Accordingly to allow you to reform I suspend this 08 months imprisonment to 03 years.
    
13. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Decree.
    
14. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate, Suva