State v Tabucala [2016] FJMC 56; Criminal Case 75.2016 (15 April 2016)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No. 75 of 2016

STATE

v

LIVAI RAVONOKULA TABUCALA

For Prosecution : Sgt Rinesh

For Accused : In Person

Sentence : 15 April 2016

SENTENCE

1. The Accused, Livai Ravonokula Tabucala, you are before this court to be sentenced after you pleaded guilty to one count of theft.
   
2. On 3 March 2016, you waived your rights to counsel and you pleaded guilty to the charge of theft – contrary to section 291 of the Crimes Decree of 2009. I find your plea to be unequivocal.
   
3. You admitted to the following summary of facts on 23 March 2016.
   

“On 8 March 2016, at Savusavu town, the complainant stopped his vehicle in front of D. Solanki shop and his wife Cilia Snowden, 50 years, domestic duties of Naverea went out to buy recharge card from Umesh Charans shop. When the accused approached the complainant and requested for a lighter. The accused then put his hand inside the vehicle and pulled out a bunch of money which was placed near the gear. When the wife came back, she saw the accused walking away towards Umesh Charans shop and she could not find the money where it was placed and suspected that it was taken by the accused. The complainant followed the accused in the shop and asked him for the money but he denied. An employee in the shop who saw the accused putting something between the gas cylinders then took the complainant to where the money was hidden and $100.00 was recovered. $110.00 was not recovered. Matter was reported and the Accused was arrested. He was interviewed under caution and admitted to the offence”.

4. The maximum sentence for the offence of theft is 10 years imprisonment. The tariff was set in the case of Ratusili v State [2012] FJHC 1249; HAA 011.2012 (1 August 2012) as follows; -
   
   1. First offence simple theft, sentence range between 2 and 9 months.
   2. Any subsequent offence attracts penalty at least 9 months.
   100. Theft of large sum of money and theft in breach of trust, whether first offence or not attract sentence of up to 3 years.
   4. Planned thefts attracts greater sentence than opportunistic thefts.
      
5. This is not the first time you have been convicted and sentence for the offence of theft. Therefore, your case falls under category (b) of Ratusili’s case (supra).
   
6. In Vakarauvanua v State [2004] FJHC 116; HAA 0052j.2004S (25 June 2004), the Court state that any sentence in excess of 9 months, the length of the sentence will depend on the value of the goods stolen and the circumstances of the stealing.
   
7. In Koroivuki v The State, Crim. App. No. AAU0018 of 2010 (15 March 2013) the Court of Appeal said at paragraph 27: -
   

“In selecting a starting point, the Court must have regarded to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practise, the starting point should be picked from the lower or middle range of the tariff”.

8. In compliance to Koroivuki’s case (supra), I pick 1 year and 2 months as my starting point.
   
9. I added 8 months to your sentence for the following aggravating factors; -
   1. You requested for a lighter when you unlawfully put your hand inside the vehicle.
   2. Unlawfully pull out a bunch of money from inside the car without the owner’s consent.
   100. You denied taking the money when question by the complainant wife.
   4. You stole $210.00 and $110.00 was not recovered.
      
10. That increases your sentence to 1 year and 10 months. I reduce your sentence by 6 months for the following mitigation;-
    1. That you are 40 years, married with 2 children.
    2. You are a farmer.
    100. You ask for the Court’s forgiveness.
    4. You are very remorseful.
       
11. That reduces your sentence to 1 year and 4 months imprisonment.
    
12. You entered an early guilty plea, and in the case of Vilimone v State [2008] FJHC 12, the High Court state that one third of the sentence should be reduced for an early guilty plea. You are entitled to a one third reduction and I will reduce your sentence by 5 months and that reduces your sentence to 11 months.
    
13. I noted that you have been remanded for 1 month and 8 days. In Bavoro v State [2013] FJHC 1, the court state that appropriate reduction in the sentence to reflect the remand period could be made under section 24 of the Sentencing and Penalties Decree 2009. I will further reduce your sentence by 1 month and 8 days and that reduces your sentence to 9 months and 22 days.
    
14. Your final sentence is 9 months and 22 days. I have considered your previous conviction from 2007 to this year where you have been convicted for 9 cases of larceny and 3 cases of theft. Your total conviction from 2007 to this year excluding the present case is 23 cases. You criminal records show that you have violated property rights of the law abiding citizens of our society. You have failed to reform yourself from the leniency of the courts in your previous cases. You have repeated the same offence indicating strongly that the leniency shown by the court is powerless to rehabilitate you. You have shown that you are a threat to society as you choose to violate legally protected rights of citizen at will. You have not offered any special circumstances to motivate this court to consider otherwise.
    
15. This is not a case where suspended sentence should be ordered. I now sentence you to 9 months and 22 days imprisonment.
    
16. I have noted from your criminal record that your last conviction is on 23 February 2016 for the offence of theft. You are currently on suspension period for 2 years from 23 February 2016. I will now address the question of suspended sentence. The law is clear that any offence committed during the suspension period that led to conviction shall activate the suspended sentence. I now determine to activate your sentence on Criminal Case No. 51 of 2016 where you are to serve your sentence of 12 months imprisonment. There are no exceptional circumstances on why your activated sentence should not run consecutively. I therefore, order that your activated sentence to run consecutively to the substantive sentence.
    

28 days to appeal.

......................................

C. M. Tuberi

RESIDENT MAGISTRATE