State v Tukana [2019] FJMC 106; Criminal Case 81 of 2019 (30 July 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 81 - 2019
STATE
-v-
ISIRELI TUKANA

Before : RM Fotofili L.

For Prosecution : WPC Chand A. [ Police Prosecution ]

Accused : In Person, Waived Right To Counsel

Date of Sentence : 30^th July 2019

SENTENCE

1. ISIRELI TUKANA, you have pleaded guilty to the following charge [ amended on the 25^th June 2019 ] :
   

Statement of Offence

THEFT: Contrary to section 291 of the Crimes Act of 2009.

Particulars of Offence

ISIRELI TUKANA on the 24^th day of February, 2019 at Tavualevu village, Tavua in the Western Division, dishonestly appropriated a Skyworth Brand Flat screen television valued at $699.00 the property of SALOTE TABUDUKU, with intention to permanently deprive the said SALOTE TABUDUKU of his [ sic ] property.

2. I am satisfied that your guilty plea is voluntary, it is supported by the evidence tendered in support of your guilty plea and your admission in court. I am also satisfied that you understand the consequence of your plea.
   
3. I find you guilty and I convict you of the charge accordingly.
   
4. The victim’s family were not at home at the time as they went to their farm house. They had secured their house before leaving. When they returned, it was seen that the louvers in the sitting room was open and the front door partly open. The 27 inch flat screen TV was also missing from the sitting room.
   
5. The investigation by police uncovered that you had sold the TV for $150. The TV has been recovered by police and has been identified by the victim.
   
6. I have ordered the return of the TV to the owner pursuant to section 155 ( 1 ) ( c ) of the Criminal Procedure Act 2009. This order was made on the 20^th of March 2019.
   
7. No order has been made for the 3^rd party who you sold the TV to.
   
8. When you were arrested and interviewed by police. You said that you went to the house to sleep after drinking alcohol. You said that you just pushed the door and it opened and you went inside. You woke up inside the house in the morning and you saw the TV. You took it and sold it for $150.
   
9. The house belongs to your grandmother.
   
10. You have not spent any time in remand.
    
11. You are a first offender.
    
12. You are 19 years old. Single with no children. You are unemployed. You seek forgiveness. You said that you wanted more money to buy drinks and that is why you sold the TV.
    

MAXIMUM SENTENCE

13. The maximum punishment for theft is up to 10 years imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

14. The sentencing tariff for theft is as follows [ Ratusili v State [2012] FJHC 1249; HAA011.2012 ( 1 August 2012 ) ] :
    

(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 oft, whether first offence

or not can attract sentences of up to three years.ears.

(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.

STARTING POINT

15. Based on the objective seriousness of the case, I select a starting point of 4 months imprisonment.
    

AGGRAVATING FEATURES

16. I am unsure that you planned the theft.
    
17. I accept though that you went to the house to sleep. It was still uninvited.
    
18. You left the door of the house open when you left.
    
19. You sold the TV for $150.
    
20. I increase your sentence to 12 months imprisonment.
    

MITIGATION

21. You have cooperated with police during your interview.
    
22. I accept that your cooperation resulted in the recovery of the TV.
    
23. I accept that you are remorseful.
    
24. You are young and a first offender.
    
25. Your sentence is reduced to 5 months imprisonment.
    

GUILTY EARLY

26. I accept that your guilty plea is early and I reduce your sentence to 3 months and 14 days imprisonment.
    

SUSPENDED SENTENCE & OBJECTIVE OF SENTENCING

27. I can suspend your sentence whether in whole or in part pursuant to section 26 ( 1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009 as long as your sentence is below 2 years imprisonment.
    
28. Your sentence is aimed at deterrence and to punish you adequately.
    

FINAL SENTENCE

29. Your sentence is 3 months and 14 days imprisonment.
    
30. No further reduction in sentence will be made as you did not spend any time in remand.
    
31. I am only inclined to suspend your sentence in part.
    
32. 2 months of your imprisonment term will be suspended for the next 18 months.
    
33. Do not commit any other offence punishable with imprisonment in the next 18 months. If you do, this 2 months imprisonment held in waiting maybe activated.
    
34. You will serve 1 month and 14 days imprisonment immediately.
    
35. 28 days to appeal.
    

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at TAVUA this 30^th day of July, 2019.