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State v Lal [2012] FJHC 1333; HAC215.2011 (14 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 215/ 2011

BETWEEN:

STATE

AND:

JAY RAM LAL

COUNSELS : Mr L Meli Vosawale for the State
Mr Sunil Kumar for the Accused

Date of Hearing : 4th September, 2012
Date of Sentence : 14th September, 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charge against the accused above named.

STATEMENT OF OFFENCE

THEFT: Contrary to section 291 of the Crimes Decree No: 44 of 2009

Particulars of Offence

JAY RAM LAL on the 4th day of July 2011 at Nasinu in the Central Division stole $1000.00 the property of NAAZMUN BEGAM.

2. When the Plea was taken on the 19th day of September, 2011 the accused had pleaded not guilty to the charge against him. On 2nd day of July, 2012 the accused changed his plea and pleaded guilty to the charge against him. Accepting the Plea to be unequivocal this court found him guilty and convicted him under Section 291 of Crimes Decree No: 44 of 2009.

3. State Counsel submitted following summary of facts of which the accused admitted.

On the 4th of July, 2011 Jay Ram Lal (hereinafter referred as "the Accused") was at his home in Wainibuku, when Satish Lal brought a purse and placed on top of a refrigerator. Whilst Satish Lal began opening the purse, the Accused noticed the contents of the purse-there were another small pouch in the purse where a Westpac ATM card was kept. The Accused then accompanied Satish Lal and his wife to Tebara Plaza.

The Accused noticed a Fijian woman of Indian descent's name on the card when Satish Lal gave him the card to withdraw from an ATM Machine at Tebara Plaza.

The Accused withdrew a sum of $1000.00 after noticing the PIN number which was written on a piece of paper placed together with the card. The Accused gave the $1000.00 to Satish Lal who bought liquor with the money and gave $100.00 to the Accused. The accused and Satish Lal bought 2 x 26 ounce rum and a carton of beer.

The Accused was Caution Interviewed on 6th of July 2011, whereby he admitted to the above allegations. He was formally charged on the 7th of July 2011 for Theft contrary to section 291 of Crimes Decree No: 44 of 2009.

TARIFF

4. Theft attracts a maximum sentence of 10 years imprisonment pursuant to section 291 of the Crimes Decree 2009. The offence of Theft under the Crimes Decree 2009 is similar to the offence of "Larceny" under section 259 and 262 of Penal Code Chap 17.

5. There have been various and varying decisions from High Court on the tariff for larceny which offence has now been replaced by theft.

• In the case of Chand HAA 30 of 2007 in a case of house breaking and larceny, Hon. Mataitoga J held that the tariff for larceny was between two to three years. Unfortunately the learned judge did not explain this high tariff, nor did he make references to the facts that pertained to that case.
  
• In the case of Niudamu HAA 28 of 2011 this court held that the tariff for theft by a first offender should be between two to nine months.
  
• The dicta of Hon. Shameem J in Jone Saukilagi HAC 21 of 2004 are most helpful. Her ladyship said This:

"the tariff for simple larceny on a first conviction is from two to nine months and on a second conviction a sentence in excess of nine months. In cases of larceny of large amounts of money sentences of 18 months to three years have been upheld by the High Court. (Sevanaia via Koroi HAA 31 of 2001). Much depends on the value of the money stolen and the nature of the victim and defendant. The method of stealing is also relevant."

6. The accused is 29 years of age and married. He has three children aged 7 years, 4 years and 2 years. He is the sole bread winner of the family. He earns $150.00 per week. One child is schooling and he supports his elderly parents.

7. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

8. Section 15(3) of the Sentencing Decree provides that:

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

9. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

(a) To punish offenders to an extent and a manner, which is just in all the circumstances;
(b) To protect the community from offenders;
(c) To deter offenders or other persons from committing offences of the same or similar nature;
(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
(e) To signify that the court and the community denounce the commission of such offences; or
(f) Any combination of these purposes.

10. Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable gridline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for that a court may consider under this Decree;

(i) The offender's previous character;

(j) The presence of any aggravating pre mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this decree as being grounds for applying a particular sentencing option.

11. Now I consider the aggravating factors:
    
    • (a) That accused knew that the ATM card does not belong to him or Satish Lal.
    • (b) He did not assist in informing the proper authorities that an ATM card was found in Satish Lal's taxi.
    • (c) That he assisted in buying liquor from the money he withdrew with the ATM card.
      
12. Now I consider the mitigating circumstances:
    

(a) The accused pleaded guilty before the commencement of the trial.

(b) Accused is married and has three small children.

(d) He is looking after his elderly parents.

(e) He is remorseful.

(f) Accused has been in remand for a period of one month.

(g) He has apologized to the complainant and made arrangement to compensate her.

(h) The complainant has written to Director of Public Prosecution Office to withdraw the charge against the Accused.\

13. Considering all aggravating and mitigating circumstances I take 12 months as starting point. I add three 06 months for aggravating factors and deduct 08 months for the mitigating factors. Now the sentence is 10 months imprisonment.

14. Considering section 26(1) of sentencing and Penalties Decree 2009 and the family commitment of the accused I suspend the 10 months imprisonment for a period of 2 years. Suspended sentence explained.

15. Further I impose a fine of $300.00. In default three month's imprisonment.

16. 30 days to appeal.

P Kumararatnam

JUDGE

At Suva
14th September, 2012