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State v Rattan - Sentence [2012] FJMC 122; Criminal Case110.2012 (30 May 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: - 110/2012

STATE

V

VISHLAL RATTAN

For Prosecution : - Sgt. Lenitasi
Accused : - In person

SENTENCE

1. You VISHLAL RATTAN, were charged by this court, for the offence of Theft, which is punishable under section 291 of the Crimes Decree No 44 of 2009.
   
2. When the charge was first read , you admitted offence but disputed the amount of the property.
   
3. But later you informed that you admitted the amount also. I am satisfied that you fully comprehended legal effect of your plea and your plea was voluntary and free from influence. Wherefore, I convict you for the said offence.
   
4. Summary of facts, as admitted by you before the court, revealed that this offence was committed on the 20th day of April 2012, at Matanipusi, Serua, Navua.
   
5. Further, the summery of facts revealed, that you went to the assistance of an accident victim and whilst doing so stole his properties to the total value of $615.00
   
6. Upon considering the summery of facts in this crime, I now direct myself to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
7. The maximum punishment for the theft is 10 years imprisonment. Tariff for simple larceny is 6 months to 12 months imprisonment. (Kaloumaira v State ( 2008) FJHC 63), (Manasa Lesuma v State 2004, FJHC 490). It was held in Tikoitoga v State (2008, FJHC 44, HAM088.2007, 18th March 2008), that the tariff for larceny is 18 months to 3 years. Shameem J held in Vaniqi v State (2008, FJHC 348,HAA080.2008) that tariff for simple larceny with previous conviction of a felony to be over 9 months. 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.
   
8. Accordingly I select 09 months as my starting point for your sentence.
   

Aggravating Factors

9. You stole the properties of an accident victim. You went to his assistance and by doing so you stole his properties. You took advantage of his condition at that time and committed this act . By doing this disgraceful crime, you have shown that you do not have remorse or respect to the society and to the law and order of this country.
   
10. Accordingly I increase 09 months from the starting point for your sentence to stands for 18 months.
    

Mitigating Factors

11. Since you have pleaded guilty in the first available instance you are entitled for a reduction of 1/3 of the total period of imprisonment. (Akili Vilimone v State). Therefore your sentence stands for 12months.
    
12. You are24 years old married with your wife pregnant. You asked forgiveness. All the stolen properties were recovered.
    
13. For the above mitigating factors I reduced another 04 months. Therefore your sentence stands for 08 months.
    
14. In this point I am mindful that under sec26 (2) of the Sentencing and Penalties decree a sentence which is below two years could be suspended by the court.
    

15 In DPP v Jolame Pita (1974) 20 FLR 5, His Lordship Grant Actg CJ (as he then was) laid down guidelines for imposing suspended sentence at p.7:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence as, for example, the misappropriation of a modest sum not involving a breach of trust, or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate."

16 In State V Alipate Sorovanlagi Revision Case No: HAR 006 of 2012 His Lordship Goundar J held that the above guidelines are still the state of law and binding in the magistrate court.

17. Even though you are young offender you are not a first offender. You got 5 previous convictions. I noted that out of that, 3 for the same kind of offences (Larceny). Therefore I do not see any special circumstances to justify a suspension of your sentence.
    
18. Accordingly I sentence you to 08 months imprisonment for the offence Theft contrary to section 291 of the Crime Decree No 44 of 2009.
    

28 days to appeal

08/06/2012 H.S.P.Somaratne

Resident Magistrate, Navua
H.S.P.Somaratne