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State v Tuilau - Sentence [2019] FJMC 76; Criminal Case 203 of 2019 (31 May 2019)

IN THE MAGISTRATES COURT OF FIJI
AT LABASA

CRIMINAL JURISDICTION


Criminal Case No. 203 of 2019

STATE


-v-


  1. APOLOSI TUILAU
  2. RONEEL RAVINESH CHAND

Appearances: Constable A. Lal for the State

Mr. A. Kohli, of counsel and Ms. R. Raj, of counsel for the Defendants


Date of Sentence Hearing: 29 April 2019 and 22 May 2019
Date of Sentence: 31 May 2019


SENTENCE


  1. You each entered individual guilty pleas to the counts that related to you on the State’s Charge as follows:

COUNT 1:


THEFT: contrary to section 291 (1) of the Crimes Act 2009 in that you APOLOSI TUILAU between 08th day of June 2018 to 20th day of January 2019 at Bagabaga, Labasa in the Northern Division dishonestly appropriated 3 x Billy goats valued at $900.00 the property of JITENDRA ROY PRASAD with the intention to permanently deprive the said JITENDRA ROY PRASAD.


COUNT 2:


THEFT: contrary to section 291 (1) of the Crimes Act 2009 in that you APOLOSI TUILAU and you RONEEL RAVINESH CHAND between 08th day of June 2018 to 20th day of January 2019 at Bagabaga, Labasa in the Northern Division dishonestly appropriated 2 x male sheep valued at $700.00 the property of JITENDRA ROY PRASAD with the intention to permanently deprive the said JITENDRA ROY PRASAD.


  1. In open Court you individually indicated that you understood and admitted the State’s Summary of Facts which read:

“Between 08/06/18 to 20/01/19, (at) Bagabaga, Labasa, Apolosi Tuilau (Accused 1), 21 years, Labourer of Bagabaga, Labasa stole 3 x billy goats valued at $900.00 and together with Roneel Ravinesh Chand (Accused 2) stole 2 x male sheeps valued at $700.00, all the total value of $1600 the property of Jitendra Roy Prasad (victim), 42 years, self-employed of Labasa, with intention to permanently deprive the victim.


Between the above date at the above place, (Victim) while checking on his farm found out that 3 billy goats and 2 male sheep were missing from his farm. (Victim) checked all around the area but could not locate, then (Victim) reported the matter to the Police.


Upon receipt of the report PC 5188 JOSUA was detailed to be the investigating officer in the case. The IO visited the scene and conducted enquiries where (Accused 1) and (Accused 2) was located, the both accused was interviewed under caution whereby (Accused 1) admitted stealing 3 billy goats and 2 male sheep and (Accused 2) admitted stealing 2 male sheep together with (Accused 1)....”


  1. Your Records of Interview with the Police were tendered and shown to you. You each admitted that you had given the answers contained in that Record and more than that, you had given your answers freely and voluntarily.
  2. APOLOSI, you admitted that JITENDRA ROY PRASAD was your neighbour. You would sneak onto his property, steal a goat and then sell it. You did this three times. Then, with RONEEL, you and he went over there, worked together, stole two sheep and that you then sold the sheep.
  3. RONEEL, you admitted that you and APOLOSI had snuck onto JITENDRA ROY PRASAD’s property and working together you then stole two of his sheep, which APOLOSI then sold, bringing you your share of $150.00 after he had done so.
  4. I am satisfied that you each knew what you were about when you each entered your guilty pleas and I find your pleas to be unequivocal.
  5. I find you, APOLOSI TUILAU guilty and I convict you on each count of THEFT as charged.
  6. Moreover, I find you RONEEL RAVINESH CHAND guilty and I convict you of THEFT as charged.

Maximum Penalty & Tariff


  1. The maximum penalty for this offence is 10 years imprisonment.
  2. The tariff is outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) per Madigan J. as follows:

(i) For a first offence of simple theft the sentence 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 the offender and victim.

(v) Planned thefts will attract greater sentences than opportunistic thefts.


Aggravating Factors


  1. These were planned, systemic thefts not simple opportunistic ones.
  2. Moreover, you targeted Mr. Prasad’s livestock; animals that you knew were his source of his livelihood. Animals that represented a continuing investment in time and feed and care over and above his initial expenditure at purchase.
  3. You both did this for financial gain.

Mitigating Factors


Apolosi Tuilau


  1. You are 21 years old, a cane cutter by profession who cooperated with the Police and who took responsibility for his crimes when interviewed by them. You have agreed to compensate Mr. Prasad but I pause here to note that you have not done so yet.
  2. You pleaded guilty thus saving the Court’s time, and the State, the resources it would have had to expend in running a full trial. You are a first offender and you promise not to reoffend.
  3. Explaining the circumstances of the offending, you say that you are poor and were barely able to make ends meet. You saw sheep and goats on your neighbours farm and decided to steal some of them to make some money. You sold what you had stolen and then you used the money to buy food and other things for yourself.
  4. I pause here to note that the last is no excuse. Your state of claimed poverty does not reduce your level of moral culpability one iota. You are young, and healthy. The energy you put into planning and executing your thefts, you could and should have expended in fishing or farming or carpentry or any other legitimate forms of money-making more suited to your taste and talents in order to make ends meet.

Roneel Ravinesh Chand


  1. You are 33 years old. You are married with two children, one who is in Class 5 and the other of whom is 3 years old.
  2. You are a first offender who cooperated with the Police and who admitted the commission of the offence. You have paid Mr. Prasad back the full price of the sheep you stole. You are sorry for what you did and you promise not to re-offend.
  3. Explaining the circumstances of the offending, you say that live near Mr. Prasad’s farm. You saw the sheep grazing and you gave into temptation. You joined your brother-in-law Apolosi and stole the sheep to make money thereby.
  4. I repeat, this last is completely unacceptable in all the circumstances of this case.

Sentencing
Apolosi Tuilau
Count 1

  1. I pick a starting point of 6 months imprisonment and I increase this by 3 years for the aggravating factors present here. Your sentence is 3 years and 6 months.
  2. Your counsel submits that you fully cooperated with the Police. What this actually amounts to is that you fully admitted the offence after their investigations led them to you. I reduce your sentence nominally by one month for this factor. Your sentence is now 3 years and 5 months.
  3. Moreover, you have promised to recompense Mr. Prasad for the loss of his goats, and he has agreed to allow you to. That is only right that you do. Promises are cheap. It is action that matters. I reduce your sentence nominally by 1 month for this factor. Your sentence is now 3 years and 4 months.
  4. You are a first offender. I reduce your sentence by 6 months for your previous good character. Your sentence is now 2 years and 10 months.
  5. You entered a guilty plea at the first available opportunity and in so doing; you saved the Court time and the State the resources of running a full trial. I reduce your sentence by 11 months. Your sentence is now 1 year and 11 months.
  6. I am empowered to suspend sentences of 2 years or less pursuant to section 26 (2)(b) of the Sentencing and Penalties Act 2009. After carefully considering your mitigating factors against the aggravating factors of this case, I decide that it better serves the principles of condign punishment, specific and general deterrence and rehabilitation of the offender to impose a suspended sentence.
  7. I suspend your sentence of 1 year and 11 months for a period of 3 years.
  8. You must not commit another offence in the next 3 years. If you do, you may find yourself serving the 1 year and 11 month imprisonment term I suspended today.

Count 2

  1. I repeat that process for Count 2. I know that you stole 3 goats in the one count and 2 sheep in the other. But the value of the items are near in value and the same aggravating and mitigating factors apply. I also note that the value of the sheep has been met by Roneel. However, it was him and not you that met that cost.
  2. You are sentenced to 1 year and 11 months and I suspend this term of imprisonment for a period of 3 years.
  3. You must not commit another offence in the next 3 years. If you do, you may find yourself serving the 1 year and 11 month imprisonment term I suspended today.

Roneel Ravinesh Chand

  1. I pick a starting point of 6 months imprisonment and I increase this by 3 years for the aggravating factors present here. Your sentence is 3 years and 6 months.
  2. Your counsel submits that you fully cooperated with the Police. What this actually amounts to is that you fully admitted the offence after their investigations led them to you. I reduce your sentence nominally by one month for this factor. Your sentence is now 3 years and 5 months.
  3. More pertinently, you have recompensed Mr. Prasad for his loss. I reduce your sentence by 6 months for this factor. Your sentence is now 2 years and 11 months.
  4. You are a first offender. I reduce your sentence by 6 months for your previous good character. Your sentence is now 2 years and 4 months.
  5. You entered a guilty plea at the first available opportunity and in so doing; you saved the Court time and the State the resources of running a full trial. You are entitled to a full one third reduction on your guilty plea. I reduce your sentence by 9 months. Your sentence is now 1 year and 7 months.
  6. I am empowered to suspend sentences of 2 years or less pursuant to section 26 (2) (b) of the Sentencing and Penalties Act 2009. After carefully considering your mitigating factors against the aggravating factors of this case, I decide that it better serves the principles of condign punishment, specific and general deterrence and rehabilitation of the offender to impose a suspended sentence.
  7. I suspend your sentence for a period of 3 years.
  8. You must not commit another offence in the next 3 years. If you do, you may find yourself serving the 1 year and 7 month imprisonment term I suspended today.

Result


  1. In the result and for the reasons set out above:
    1. APOLOSI TUILAU you are convicted of two counts of THEFT and are sentenced to imprisonment for 1 year and 11 months on each count suspended for a period of 3 years.

The periods of suspension are to run concurrently.


  1. RONEEL RAVINESH CHAND you are convicted of one count of THEFT and are sentenced to imprisonment for 1 year and 7 months suspended for a period of 3 years.
  2. 28 days to appeal.

......................................
Seini Puamau

Resident Magistrate


Dated at Labasa this 31st day of May 2019


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