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State v Prasad - Sentence [2012] FJMC 142; Criminal Case 175.2012 (25 June 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: 175/2012

STATE

V

ANESH PRASAD

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

SENTENCE

1. You ANESH PRASAD were charged for the offence of “Theft” which is punishable under section 291 of the Crime Decree No 44 of 2009 and carries a maximum penalty up to 10 years of imprisonment.
   
2. You pleaded guilty for the said offence on 25 June 2012 on your own will and accord. I 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 offences of Theft.
   
3. It was revealed in the Summary of facts, which you admitted in open court, that you committed this offence between the 30th of August, 2011 and the 14th of Dec 2011 at Navua, CentrCentral Division.
   
4. You whilst employed as an enforcement officer engaged in collecting garbage fees dishonestly appropriated cash $102.00, the property of Navua Rural Local Authority.
   
5. I now proceed to determine an appropriate starting point and sentence for you upon considering general principles of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objectives and purposes of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
6. Tariff for simple larceny is 6 months to 12 months imprisonment. (Kaloumaira v State ( 2008) FJHC 63), (Manasa Lesuma v State 2004, FJHC 490).
   
7. 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.
   
8. Her Ladyship Shameem J held in Vaniqi v State (2008, FJHC 348, HAA080.2008) that tariff for simple larceny with previous conon of a felony lony to be over 9 months.
   
9. Upon considering above mentioned legal precedents on Tafor the offence of Theft I ft I select 18 months as a starting point for your sentence.
   

Aggravating factors

10. You committed these offences for a period of time. Also by doing this act you breached the trust of your employer. I take these as aggravating factors and increase your sentence by 10 months. Now your sentence stands for 28 months.
    

Mitigating factors

11. I consider following mitigating factors which were brought before me in your mitigation submission.
    

Married with 2 children
Seeks forgiveness from the court
Fully cooperated with the police

12. 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)Thereby your sentence stands for 18 months.
    

For other mitigating factors I deduct another 04 months. Now your final
sentence stands for 14 months.

13. In pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree I am mindful that a sentence which is below two years could be suspended by this court. Should I suspend your sentence? I take in to consideration the relevant case law in deciding your sentence.

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial;

(x) any help given by him to the police.

15. In State v Raymond Roberts [2004] FJHC 51, Justice Shameem stated:-

"The principles that emerge from these cases are that a custodial sentence is

inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodian sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim."

16. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for fiffenders."

17. I note that you are a first offender. You cooperated with the police and admitted
cting this offence. You pleaded guilty at the first available opportunity. Also you have paie paid back the money that you stole from your employer and produced the receipt.

18efore I re I am, of the view that you should be given an opportunity to rehabilitate

Yourself away from a custodial sentence. dingly, I sentence you14
months imprisoprisonment period for the offence of Theft contrary to section 291 of
the Crime Decree No 44 of and suspend it for a period of Three years.