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State v Tukitoga [2012] FJMC 105; Criminal Case 403.2012 (30 May 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No: 403/12

STATE

V

JOAPE TUKITOGA

Prosecution : WPC Fisher, Police Prosecutor.
Accused: Appeared in person.

SENTENCE

1. You, Joape Tukitoga is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 22.05.2012, for committing the offence of 'Theft' contrary to Section 291(1) of the Crimes Decree No 44 of2009.
   
2. You elected to represent yourself.
   
3. According to the Summary of Facts tendered by the Prosecution, on 07.03.2012, around 7.00 pm Abid Dean a 42 year old self employed was with his father inside their shop serving the customers. He left his mobile phone on the freezer and went inside to get something. At this point you entered the shop to buy Kerosene. You took the mobile phone of Abid Dean and walked away with your brother. The value of the mobile phone is $499.
   
4. Abid Dean reported this matter to the Lami police station. Two days later you were arrested on the information gathered by the investigators.
   
5. You admitted the offence in your caution interview given to the police. The phone was recovered from the possession of your girlfriend.
   
6. The aforesaid Summary of Facts was admitted by you on your own free will.
   
7. The Court convicted you for the offence you were charged with.
   
8. The offence of 'Theft' under the Crimes Decree 2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
   

(i) According to Section 291 of the Crimes Decree 2009, the offence of 'Theft' attracts a Maximum Sentence of 10 years imprisonment.

(ii) The Tariff for the afore-stated offence 'Larceny' is between six (06) months to twelve months (12) imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)

(iii) In the case of Tikoitoga v State [2008] FJHC 44; HAM088.2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

(iv) The tariff for 'simple larceny', with a previous conviction of a felony, was held to be over 9 months. (per Shameem J in Vaniqi v State [2008] FJHC 348; HAA080.2008 (12 December 2008)

(v) It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) that the tariff is be at least one year of imprisonment for a first offender of Larceny.

Accordingly in this case, 09 months imprisonment taken as the starting point for your sentence.

9. The nature of this offence can be totally explained as an act of opportunity. Hence there are no aggravating factors that enhance your sentence.
   

MITIGATING FACTORS

10. In mitigation, you stated to Court that you are 29 yrs old; with 4 year old child and an elderly mother to look after; sole breadwinner for the family. It appears that you have co-operated with the investigators to recover the stolen mobile phone.
    
11. The Court observes that you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 3 months of your term of imprisonment which now stands to 06 months.
    
12. Further I reduce one month for your personal circumstance.
    
13. Therefore, your final term of imprisonment stands at 5 months.
    
14. The Court is mindful of the fact that a sentence below two (02) years could be suspended in terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009,
    
15. You have 5 previous convictions against your name. It is to be noted that this Court sentenced you for the case 259/12 on 24.02.2012 for Criminal Trespass and Damaging Property. You were given a suspended sentence in the mentioned case.
    
16. Within two weeks from that sentence, you have committed this offence. The circumstances are clear that you have not respected the order of the Court to suspend your earlier sentence.
    
17. In view of the above findings, the Court does not see any compelling reason to suspend your sentence this time.
    
18. Accordingly, Joape Tukitoga today you are sentenced to 5 months imprisonment.
    
19. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate
30th May 2012