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Duavasa v State [2013] FJHC 679; HAA023.2013 (12 December 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA023 of 2013

BETWEEN:

MUA JACKSON DUASAVA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in person
Ms P. Low for State

Date of Hearing: 9 December 2013
Date of Judgment: 12 December 2013

JUDGMENT

[1] This is an appeal against sentence only. The appellant was sentenced to 11 months' imprisonment in the Magistrates' Court after he pleaded guilty to a charge of theft contrary to section 291 of the Crimes Decree 2009.

[2] The facts admitted by the appellant were that on 7 December 2011, he went to a dental clinic in Labasa to seek treatment for one of his daughters. He left the clinic when told that the treatment would not be done on that day. After a while he returned to the clinic. He saw the receptionist's hand bag on the counter. While the complainant was attending to another patient, the appellant grabbed her hand bag and took off. The complainant chased the appellant but was unable to catch him. A reportwas made to the police. The appellant was arrested and apart from $30.00 cash, the hand bag and other items were recovered.

[3] In mitigation, the appellant told the learned Magistrate that he was 36 years old and married with a child. He lived with his family and was looking after his parents. He was employed as a labourer by a road construction company and was the sole breadwinner for his family. He was remorseful and cooperated with the police in the recovery of the stolen items.

[4] The substance of the appellant's grounds of appeal is that:

(i) The theft was an opportunity crime.

(ii) The sentence does not accord to other comparable sentence.

(iii) The sentence should have been suspended because there were no aggravating factors.

(iv) The sentence is harsh.

[5] The sentencing principles that the Learned Magistrate applied to this case are set out in paragraphs 4 – 10 of the sentencing remarks:

The maximum penalty for theft is 10 years imprisonment. In JoneSaukilagiHAC 214 of 2004, Shameem J (as she then was) stated:

...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. (SevanaiaViaKoroi 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.

Referring to a number of cases of theft, Madigan J stated inRatusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) at paragraph 13:

From the cases then the following sentencing principles are established:

(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 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 offender and victim.

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

You are not a first time offender and have a total of 11 previous convictions. Three of these were committed within the last 10 years. All three are for theft and serious theft related offences. Your previous convictions do not aggravate your offending and only mean that you are not entitled to credit otherwise to those with previously clean records.

Your offending has no aggravating features.

Mitigating factors

• Guilty plea (though not entered early in proceedings)
• Cooperation with the Police
• Remorse
• Partial recovery of stolen items
  

Having considered the sentencing guidelines above for this offence, and considering this is not your first offending, I take a starting point of 18 months imprisonment. For the mitigating factors, I deduct 3 months, taking the interim total down to 15 months imprisonment. For the guilty plea entered close two years after you first appeared in Court for this case, I deduct 4 months, leaving now a balance of 11 months imprisonment.

I have considered suspension and find that no special circumstances exist to warrant the suspension of your sentence. You obviously do not seem to have learnt any lesson from your earlier convictions and periods of incarceration. I give priority to the principle of specific deterrence and order that you serve 11 months imprisonment.

[6] The learned Magistrate quite properly stated that the offending in this case had no aggravating factor. She accepted that this was not a planned but an opportunistic crime. Planning aggravates an offence (Ratusili's case). But lack of planning does mean that the offence is any less serious to justify lesser punishment.

[7] A fundamental principle of sentencing is that the punishment must fit the crime. This is known as the proportionality principle. Other comparable cases are of limited relevance in sentencing. They are only relevant to determine the range of sentence for a particular offence. In the present case, eleven months' imprisonment imposed on the appellant is within the range of sentence for theft.

[8] On 22 February 2007, the appellant was sentenced to 6 years' imprisonment for robbery with violence. He committed the theft in this case on 7 December 2011. He must have reoffended shortly after being released from the prison in 2011. The appellant has other previous convictions for theft.

[9] The learned Magistrate correctly identified the mitigating factors and gave appropriate weight to those factors. After careful consideration the learned Magistrate concluded that the sentence should not be suspended in the circumstances of this case.

[10] No error of fact or law has been shown in the sentence imposed on the appellant. The sentence is within the tariff for theft and is not excessive.

[11] The appeal against sentence is dismissed.

Daniel Goundar
JUDGE

At Labasa
12 December 2013

Solicitors:
Appellant in person.
Office of the Director of Prosecutions, Labasa for State.