State v Burelevu [2017] FJMC 49; Criminal Case 382.2017 (12 April 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: -382/2017

STATE

V

JONE BURELEVU
MOHOMMED RIZWAN

For the Prosecution : Cpl Shaw

For the 1^st accused: Ms.Tuiloma (LAC)

The 2^nd accused: In Person

Date of Sentence : 12^th of April 2017

SENTENCE

1. JONE BURELEVU, MOHOMMED RIZWAN you both pleaded guilty this morning to one count of Theft contrary to section 291(1) of the Crimes Decree No 44 of 2009.
2. According to the admitted summary of facts on 21^st March 2017 you both stole 15 cartoon of Tang Juice valued at $1412.64 from your work place. You both were working for Motibhai Group of Companies Ltd and stole these items from their ware house.
3. I am satisfied that the pleas were made voluntarily and unequivocal. Accordingly I convict you both for this charge.
4. Maximum penalty for Theft is 10 years imprisonment.
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 Tubuna v State [2017] FJHC 231; HAA04.2017 (28 March 2017) his Lordship Justice Sharma held that applicable tariff for theft by breach of trust&#160 is fros from 18 months to 3 years imprisonment.
7. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 M (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"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.

8. Considering this is a breach of trust offence, I select 20 months as the starting point for this sentence.
9. There are no aggravating factors and mitigating factors are as follow:

1^st accused

1. 31 years old;
2. Unemployed;

100. Co-operated with the police;

4. Items recovered.

2^nd accused

1. 25 years old;
2. Married with 01 child;

100. Co-operated with the police;

4. Items recovered.

10. You both are first offender. But in a breach of trust offences little weight can be given for a past good behavior unlike the normal criminal matter. This has been confirmed by her Ladyship Justice Shameem in State v Bole where she said: “In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences. “
11. But for other mitigating factors I deduct 05 months to reach 15 months imprisonment.
12. For pleading guilty at the earliest opportunity, finally I deduct 1/3 to reach 10months imprisonment.
13. Even though this is below the accepted tariff, I have come to this sentence based on lack of aggravating factors and considering the early guilty pleas of both accused.
14. In State v Raymond Roberts ( HAA0053 of 2003S), Madam Shameem held that

" the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".

15. You both pleaded on the first day and also co-operated with the police. The values of the stolen properties are not substantial and they have been also recovered. Hence I find that a non-custodial sentence is suitable in this case.
    16. Accordingly I suspend both of your 10 months imprisonment for 03 years.
17. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Decree.
18. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate