Vasikali v Regina [1977] FJSC 162; Criminall Appeal 122 of 1977 (2 December 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 122 of 1977

BETWEEN

MITIELI VASIKALI
Appellant

AND

REGINA
Respondent

Appellant in Person
Mr. I. Khan, Counsel for the Respondent.

JUDGMENT

The accused was convicted as a pick-pocket on 11th October 1977 and sentenced to 12 months' imprisonment.

The particulars of offence allege that he stole $240.00 from Shiu Narayan.

He pleaded Guilty and the facts revealed that about 9 A.M. on the 11th October 1977 the complainant came into town to prepare for his daughter's wedding and he had $240 in an envelope in his rear pocket. He was in a shoe shop having his daughter's feet measured when he was pushed from behind and he saw the accused running off with the envelope.

When the accused was arrested he had no money and said he had spent what he had stolen. Time and again no details are given by the prosecution regarding the time, date and place of arrest. Such information is part and parcel of the facts and ought to be given. In this case it would have been useful to know how long it had taken the accused to dispose of the stolen cash.

The accused in admitting the facts remarked that the envelope only contained $27.00. In passing sentence the learned magistrate said that no part of the money had been recovered, but he failed to indicate whether it was no part of $240 or of $27.00.

It is firmly established practice that when a thief or receiver admits guilt but disputes the value of the property involved the prosecution intimate whether they will accept the accused's figures. If they do the particulars of the charge are amended accordingly. However, it is open to the prosecution to insist that the particulars are correct in which case the court hears evidence as to amount, quantity or value and reaches a finding.

In this case no such steps were taken. Therefore the magistrate should have sentenced the accused on the basis that there had only been $270.00 in the envelope.

It is not apparent whether the magistrate sentenced the accused for a theft of $240.00 or $27.00. It is possible that the proceeded on the basis of $27.00 and had he done so I would not have thought the sentence manifestly excessive. However, I must give the accused the benefit of the doubt which arises from the face of the record itself. The particulars were not amended to show $27; the magistrate made no comment on the amount and I presume that the accused was convicted as charged. Consequently I have little alternative but to take the view that the magistrate may have imposed a lighter sentence if he had amended the particulars to read $27.00.

Generally the courts take a serious view of pocket picking and in imposing sentences are not moved greatly by the amount stolen, because the thief has no idea what his ill gotten gain will be. The pocket may contain a pouch of diamonds or uncut glass; or a wallet containing a thousand dollars or merely several dollars. On such a basis one cannot be lenient with the pick-pocket who only gets a few dollars in the way one would deal with a person who knowingly steals a few dollars.

Nevertheless, in this case I take the view that I should, in the circumstances reduce the sentence.

The sentence is reduced from 12 months to 9 months.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
2nd December, 1977

Appellant in Person.
Director of Public Prosecutions for the Respondent.

Date of Hearing: 4th November, 1977.