State v Khan - Sentence [2017] FJMC 136; Criminal Case 988.2017 (7 November 2017)

IN THE RESIDENT MAGISTRATE’S COURT
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

Criminal Case No: 988 of 2017

BETWEEN : THE STATE

AND : 1) SHIRAZ IMRAZ KHAN &
2) IAN MARSH BALEIKASAVU

Before : SIROMI DOKONIVALU TURAGA ESQ
RESIDENT MAGISTRATE

Date of Sentence : 7^th day of November, 2017

Sergeant Francis for Prosecution
Ms. Diroiroi of Legal Aid Commission for both accused persons

SENTENCE

1. You, Shiraz Imraz Khan & Ian Marsh Baleikasavu are here, to be sentenced on admission of guilt on your own accord for the offence of Theft : Contrary to Section 291(1) of the Crimes Act of 2009.
   

Particulars of the Offence

Shiraz Imraz Khan and Ian Marsh Baleikasavu on the 5^th day of August 2017 at Nadi in the Western Division dishonestly appropriated assorted maintenance and repair items valued at $4,000.00 and 3 x 20 liters gallons valued at $60.00 all to the total of $4,060.00 the property of Likuliku Lagoon Island Resort with intention of permanently depriving the said Likuliku Lagoon Island Resort.

2. Summary of facts noted that one Shiraz Imraz Khan [B-1], 38 years, Group Mechanic of Natabua, Lautoka and Ian Marsh [B-2], Storeman of Natabua, Lautoka stole assorted mechanic and repairing materials valued of $4,000.00 and 3x 20 litre gallon diesel valued of $60.00 all to the total value of $4,060.00 the property of Likuliku Island Resort on 05/08/17 at about 2pm at Likuliku Island Resort.

On the above mentioned date time and place Tomasi Turukawa [A-1], 28 years, Operation Manager of Likuliku Island Resort upon receiving an information, went and check on the Bin at the barge channel where 4 blue bins filled with rubbish to be sent to the mainland for disposal. Upon inspection, Mr Turukawa noticed that one of the lid not fully closed and saw a yellow gallon inside the bin filled with diesel and next to the yellow gallon were 2 properly wrapped gallons and a box.

The Operations Manager Mr Turukawa called accused 2 to remove the bin and in the process, he noted that other items wrapped in aluminium foil inside namely; 3 x 20 litre gallons valued of $60.00; assorted maintenance and repairing items valued of $4,000.00. The Operations Manager called all the maintenance and grounds boys that was offloading the barge if anyone knows about the items found in the bin and they all stated that they do not know anything. A staff by the name of Josaia Vuluma, 35 years, Carpenter of Lauwaki, Lautoka said that accused 1 was holding onto the green box which was containing the extractor fan at the ware house. When Mr Turukawa questioned accused 1, he denied any knowledge of the t the green box of the extractor fan. Accused 1 was asked to come and see the green box and admitted that the items inside are his but does not know who put the items inside the bin.

The Operations Manager informed the Resort Manager and both accused persons were called to the board room to be questioned and accused 1 took the green box of extractor fan out from the Storeroom and both admitted they were not aware of the items inside. The matter was reported to the Nadi Police Station and both accused persons were brought in for questioning and they both admitted stealing the items and filling bin to be taken brought to the mainland. Both were formally charged for 1 count of Theft: Contrary to section 291 of Crimes Act of 2009. Recovered were assorted maintenance and Repairing Items and 3 x 20 litre gallon diesels.

3. Both admitted to the summary of facts hence I each convict you for 1 count of Theft.
   
4. The maximum under section 291(1) for Theft is punishable by Ten (10) years Imprisonment.
   
5. You have pleaded guilty to the charge at the first instance and both are first offenders.
   
6. Legal Aid has made oral mitigations for the accused persons:
   

Accused 1:

1. 38 years and married with one daughter aged 9 years old;
2. Residing in Lautoka;

100. Seek forgiveness from court;

4. Promises not to reoffend;
5. Early plea;
6. First offender;
7. Is the sole breadwinner;
8. Seek leniency; and
9. Second chance to become a better person.
   

Accused 2

1. 24 years and married;
2. One son aged 11 months;

100. Reside in Natabua;

4. Seek forgiveness;
5. Understand what he did was wrong;
6. Promise not to reoffend;
7. First offender;
8. Care for his when wife is at work;
9. Seek leniency;
10. Seek a second chance; and
11. Full recovery.
    

7. In the case of Niudamu HAA28.2011, Madigan, J held that the tariff for theft by a first offender should be between two to nine months. For a first offender, the accepted tariff for a simple theft is 2-9 months’ imprisonment
   
8. In Ratusili v State [2012] FJHC 1249; HAA 011.2012 (1 August 2012) Justice Paul Madigan analyzed previous case authorities and set the tariff for Theft. His Lordship identified the tariff for simple theft as between 2-9 months. His Lordship suggested that any subsequent theft offending should attract a penalty of at least 9 months. Further, theft of large sums of money and theft in breach of trust, whether first offence or not can attract sentence up to 3 years. Planned theft will attract greater sentence than opportunistic theft.
9. In State .v Sakiusa Bole – HAC 38 of 2005, Shameem J. said:

"In breach of trust&cases, comp comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the brof trust which i ha i harm donehesethese offencefences."

10. [2013] FJCA 15; AAU0018.2010 (5 March 2013) Justice Gounder 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 stage. 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”.

11. I have considered Sections 4 [1], 4[2] and 15[3] of the Sentencing and Penalties Act to arrive an appropriate sentence, giving regards to the circumstances of the case and the relevant laws.
    
12. I adopt 1 year as my starting point
    
13. The aggravating factor was your breach of and betrayal of trust by both of you against your employer and prior planning. I add 18 months your interim sentence is 2 ½ years [ 30 months].
    
14. For your respective early plea, I deduct 10 months, the interim sentence is reduced to 20 months.
    
15. Considering your respective mitigating factors and full recovery, I further reduce 5 months.
    
16. Both of you are sentence is 15 months imprisonment.
    
17. Since your sentence is less than 2 years imprisonment, under section 26 of the Penalties and Sentencing Act 2009, I have to decide whether this case merits that suspension of the sentences.
    
18. Breach of trust cases attracts custodial sentence unless there are exceptional circumstances, sentence may be suspended.
    
19. In Khan v State [2016] FJHC 953; HAA24.2016 (24 October 2016) an appeal on the sentence of 18 months’ imprisonment without a non-parole period after a trial, the court dismissed the appeal noting that “ the sentence imposed by the learned Magistrate is neither excessive nor unreasonable”. One of the appeal ground were advanced by the appellant that the Magistrate Court had erred were in failing to considered that accused is a first offender, suspension of the sentence and relevant provisions of the Sentencing and Penalties Act 2009 were not considered. His Lordship Justice Aruna Aluthge in his assessment of the sentence noted that the learned Magistrate has rightly balanced the need for rehabilitation with that of deterrence and that:

“Case authorities in Fiji do not recommend imposing a suspended sentence where there is a breach of trust situation; a degree of preplanning, no restitution had been done and no genuine remorse is manifested even though the convict is a first offender. Therefore, learned Magistrate’s decision to impose an immediate custodial sentence is not obnoxious to the provisions of the Sentencing and Penalties Decree or sentencing guidelines entrenched in our legal system. Therefore, any kind of interference with the sentence imposed by the learned Magistrate is not warranted in this case”.

20. In this case, it appears high degree of planning by accused 1 to take hotel maintenance items for the repair of his house at Velovelo, Lautoka. There is no explanation forthcoming from the caution interview on what the fuel to be used for of 3 x 20 liters worth $60.00. In question 52, it took accused 1 3 months to slowly fill the gallon from the leftover fuel used for the serving of the generator. Accused 1 instructed accused 2 to take the loaded fuel to the bin, located at the back of the generator room. The only reasonable conclusion formed is for the fuel to be sold. The assorted items were concealed inside the bin and hidden in the green box. If the barge were not vigorously checked by Mr Turukawa, all the hotel items would have being sent together with waste disposal to the mainland undetected.
    
21. I note from the caution interview that accused 1 has being employed at Likuliku Lagoon Resort for 9 years and his duty for the past 5 years were to oversee the fuel usage and generator logs and the only person charged for serving generators. Accused 2 had being employed for 2 years as a Store man and maintenance materials found in the green box belonging to accused 1 were taken from the Storeroom and with full knowledge of accused 2.
    
22. I am mindful that both are first offenders, entered an early guilty plea and there was full recovery and have 14 days spent days in remand.
    
23. The question for this court is whether the 14 days in remand is sufficient to reflect the seriousness of the charges? Given the prevalence of this offence and degree of planning, the interests merits partial suspension which would serve the intended purpose of deterrence of future offenders and also rehabilitative to your respective mindset not to take properties that does not belong to you or to not to steal from your employer.
    
24. I take judicial notice of the prevalence of this offence in Nadi and the ongoing massive developments of 5 start hotels at Island Resorts in Malolo islands namely Likuliku and Tokariki which will continue in the future. In that regard, a deterrence sentence is appropriate to send a strong signal that thefts at Island Resorts would not be tolerated by this court. I adopt the observation of His Lordship Mr. Priyantha Nawana in State Prosecution v Tilalevu [2010] FJHC 258; HAC 081.2010 (20 July 2010) held that:
    

“I might add that the imposition of suspended terms on first offenders would infect the society with a situation-which I propose to invent as ‘First offenders Syndrome’ –where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard if self against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.”

25. I will impose 3 months imprisonment sentence for each of you and the balance of 1 year to be suspended for 3 years.
    
26. I reduce 14 days in remand.
    
27. Final custodial sentence is 2 months and 17 days imprisonment.
    
28. Summary of your sentence - 2 months and 17 days imprisonment and 1 year suspended for 3 years.
    
29. You have a right of appeal within 28 days to the High Court.
    

Dated at Nadi this 7^th day of November, 2017.

..........................................
Siromi Dokonivalu Turaga
RESIDENT MAGISTRATE