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State v Niubasaga [2012] FJMC 14; Criminal Case 525.2011 (3 February 2012)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 525 of 2011

STATE

V

ASESELA NIUBASAGA

Sergeant Volavola for the Prosecution
The accused present and unrepresented

SENTENCE

1. You, ASESELA NIUBASAGA, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

CHARGE:

Statement of Offence [a]

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

Particulars of Offence [b]

ASESELA NIUBASAGA on the 13th day of May 2011 at Nasinu in the Central Division stole 1 x I-Phone valued $900.00, 1 x Nokia mobile phone valued $100.00, 1 x Digital Camera valued $250.00, 1 x Video Camera valued $800.00 and 1 x I-Pod valued $450.00, all to the total value of $2500.00 the property of WAISEA NAKALEVU.

I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I convict you as charged.

2. Summary of facts is as follows and you admitted these facts.

(1) ASESELA NIUBASAGA (Accused 1), aged 26 years, casual laborer of Delaitokatoka Settlement, Valelevu stole 1 x I-Phone valued $900.00, 1 x Nokia mobile phone valued $100.00, 1 x Digital camera valued $250.00, 1 x Video camera valued $800.00 and 1 x I-Pod valued $450.00 all to the total value of $2500.00 the property of WAISEA NAKALEVU (PW1), aged 17 years student of 25 Dalyup Drive, Nulsen, Esperance, Australia.

(2) On the 13th day of May 2011 at about 1530 hours (PW1) with his family went to a creek at Kalabu, Valelevu for bathing. PW1 is permanently residing in Australia and was in Fiji for visit till 23/5/11.

(3) PW1 placed his small bag containing above mentioned items beside the creek and went for bath in the same creek.

(4) After a while (PW1) checked for his bag and noticed it was missing. PW1 informed his cousin Alivereti Raibevu (PW2), aged 31 years, casual laborer.

(5) PW2 questioned accused and accused admitted committing the offence. Accused promised to return the items to PW2 but failed to do so and went to Lautoka.

(6) The matter was reported at Valelevu Police Station where DC 3712 Navnit was appointed Investigating Officer in this case. Statements of PW1 and PW2 were recorded.

(7) Accused was arrested by Lautoka Police upon receiving of information. Later he was interviewed under caution where he admitted committing the offence on Q.12 to Q.22 of his caution interview. Accused admitted he sold the items to strangers at Nadi, Town. Only 1 x brown bag had been recovered from accused and other items not recovered.

3. Maximum penalty could be imposed for Theft is 10 years.

4. In William Prasad V State [2010] AAM 1/10 Ruling 12 February 2010 Byrne AP held that the tariff for simple larceny on first conviction is 2-9 months; on a second conviction, sentence in excess of 9 months and in cases of a large amount of money, 1 ½ years to 3 years. It was further held that "No error here in 1 year sentence for stealing van's stereo and amplifier worth $ 1799, later recovered from a pawn shop".

Aggravating Factors of the offence

5. Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

-pre planned theft

- value of the stolen property

-profit when non detection

- Offence committed on a student and non resident of Fiji.

- No items were recovered ( Except one brown bag)

6. The accused has 11 previous convictions since 2005. The last one was in 2009.

7. Considering value of property, I select 18 months imprisonment as starting point in respect of this offence.

Mitigating Factors

8. In mitigation, you said you are 25 years old and married with one child. You are unemployed and asked court's forgiveness and leniency.

9. You pleaded guilty for the charge at the first instance. When the prosecution asked date for summary of facts, you disappeared. Then you were arrested on bench warrant. but, you are entitled for reduction of your sentence. I am giving the benefit of ⅓ as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007. Now your sentence is 12 months.

10. For the above mention aggravating factors I increase 1 year for count the count. Now sentence is 2 years. For you mitigating factors I reduce 6months. Now your sentence is 18 months.

11. In note you have repeated similar offence earlier and you are not new to custodial sentence. You deserve long term sentence for the sake of society and innocence victims. The most of the stolen items were not recovered in this case. I rely on the notion as per Winter j in Viliame Cavuilagi –v- State [2004] HAA031/04 Judgment of 14 April, 2004;

"Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society's needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Thirdly offenders deserve punishment that fits the circumstances of the crime." (Emphasis and underlining is mine)

12. I believe that the primary aim of every sentence is prevention of future crime. Where the offender is so hardened that rehabilitation is plainly impossible, the sentence may be designed to segregate the offender from society so that he will be unable to do any future harm. I hope this proposition should be adopted for every incorrigible who cannot reform and rehabilitate.

13. This type of offence is pervading all over Fiji. You did not learn anything from your bitter past. You were given ample chance to rehabilitate yourself but you failed to do so. Thus, I decline to suspend your sentence.

This is your sentence: 18 months imprisonment

14. 28 days to appeal.

On 03rd February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate