State v Prakash - Sentence [2019] FJMC 181; Criminal Case 130 of 2016 (18 August 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 130 - 2016
STATE
-v-
VISHAL PRAKASH
ASHIFA SHABNAM NISHA

Before : RM Fotofili L.

For The Prosecution : WPC Chand A. [ Police Prosecution ]

For The Defendant : Ms Henao G. [ Legal Aid Commission]

Trial Date : 30^th April 2019

Date of Judgment : 25^th June 2019

Sentence : 18^th August 2019

SENTENCE

1. I have already sentenced the 1^st defendant Vishal Prakash and his sentence was pronounced on the 27^th of August 2019.
   
2. Police have managed to execute the warrant of apprehension on the 2^nd defendant Ashifa Shabnam Nisha who was not present during her trial and who was tried in absentia.
   
3. The 2^nd defendant Ms. Nisha was arrested on the 28^th of July 2020 and that is after I had given judgment finding both the defendants guilty of the following.
   

Count 1

Statement of Offence

THEFT: Contrary to section 291 ( 1 ) of the Crimes Act of 2009.

Particulars of Offence

VISHAL PRAKASH and ASHIFA SHABNAM NISHA on the 30^th day of April 2016 at Tavua town, Tavua in the Western Division stole a BREVILLE brand grinder valued at $122.00 the property of COURTS ( Fiji )Ltd.

4. The 1^st defendant is the only person charged and convicted for the 2^nd count of breaching an order of a suspended term.
   
5. This sentence will address the sentence of the 2^nd defendant Ms. Ashifa Shabnam Nisha for her conviction in count 1 or for stealing together with the 1^st defendant.
   
6. The 2^nd defendant Ms. Nisha is entitled to reverse the conviction entered in her absence pursuant to section 172 of the Criminal Procedure Act 2009 if she can demonstrate that:
   

(i) her absence was from causes over which she had no control; and

(ii) there is an arguable defence on the merits.

7. Both factors must be demonstrated.
   
8. The 2^nd defendant Ms. Nisha has waived pursuing this remedy.
   
9. Therefore, my finding of guilt against the 2^nd defendant Ms. Nisha remains and she remains convicted as charged.
   
10. I repeat the following findings which I had summarised when sentencing the 1^st defendant earlier.
    
11. The case against the defendants during the trial is based on a video recording captured by a stationary CCTV camera which was in place at the business or shop. The 1^st and the 2^nd defendant can be seen browsing around near the electrical appliances area of the shop. The 2^nd defendant Ms. Nisha who was carrying a bag then handed the bag to the 1^st defendant. The 1^st defendant then goes to a corner of the shop and takes a grinder or blender valued at $122 from the electrical appliance shelf or section and puts the grinder in the bag. The 2^nd defendant Ms. Nisha provided ‘body cover’ for the 1^st defendant while the 1^st defendant smuggled the stolen item into the bag. The defendants then walk out of the shop. It was realized later by staff at the shop that the item was missing. The CCTV footage was reviewed. Some staff went around town the same day to look for the defendants. They were seen in town but they disappeared. About 20 days later, a staff saw the defendants at Ba town. Police were alerted and the 1^st defendant was arrested, with the 2^nd defendant following them to the police station.
    
12. There has been no recovery of the stolen item.
    
13. I maintain that the case against the defendants is compelling or strong in light of the CCTV footage.
    
14. The 2^nd defendant Ms Nisha is a first offender.
    
15. She has been remand for 21 days now or since her arrest on the 28^th of July 2020.
    
16. Being in remand is of her own making due to her non-appearance and being at large since the 5^th of November 2018 having been bailed.
    
17. I will not consider any time spent in remand as time served. It was necessary that she be remanded and after considering the evidence after trial, the evidence is compelling.
    
18. The 2^nd defendant Ms. Nisha is 26 years old. She is married and has no child or children. She is unemployed and does domestic duties. The 1^st defendant was her partner at the material time and this has led to her making wrong choices. She is looking forward to starting a new life with her husband.
    

MAXIMUM SENTENCE

19. The maximum punishment for theft is 10 years imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

20. 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 subsequentquent 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 nn attract sentences of up t 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.

STARTING POINT

21. Based on the objective circumstance of the case, I select a starting point of 3 months imprisonment.
    

AGGRAVATING FEATURES

22. The theft was planned. It was committed skilfully by both the defendants and if it were not for the CCTV footage, they would not have been caught.
    
23. The defendants are presumed innocent until proven guilty and they have the right to contest the allegation. However, when there is compelling evidence which was the case here of clear uninterrupted video footage showing the theft and the mode in which both defendants committed it, it was futile denying the allegation and the exercise of the prosecution in having to call their witnesses and expand time and resources in proving their case must be brought to bear on you Ms. Nisha.
    
24. Your sentence is increased to 13 months imprisonment.
    

MITIGATION

25. You are a first offender.
    
26. You are remorseful.
    
27. For your limited mitigation, I reduce your sentence to 7 months imprisonment.
    

FINAL SENTENCE

28. As explained, I will not consider any time spent in remand as time served.
    
29. Your sentence will be aimed at deterrence and is to punish you adequately.
    
30. Your sentence is 7 months imprisonment.
    
31. Departing from the sentence I imposed on the 1^st defendant who had past convictions of a similar nature, I am inclined to suspend your sentence Ms. Nisha but this will only be in part.
    
32. 6 months of your imprisonment term is suspended for the next 18 months.
    
33. Do not commit any other serious offence or offence punishable with imprisonment in the next 18 months because if you do, you risk this 6 months imprisonment that is held in waiting being activated [explained to the 2^nd defendant].
    
34. You will serve 1 month imprisonment immediately.
    
35. 28 days to appeal to the High Court if you are dissatisfied with your sentence.
    

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

Dated at Tavua this 18^th day of August, 2020.