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State v Tuirevurevu [2012] FJMC 273; Criminal Case 435.2012 (2 November 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO: 435/12

THE STATE

V

ASIVURUSI TUIREVUREVU

Sgt. Naidu for prosecution
Ms.Jiuta S (Duty Solicitor, LAC) for Accused
Date of Sentence: 02.11.2012.

SENTENCE

1. You are charged with one count of Theft contrary to section 291 [1] of the Crimes Decree No.44 of 2009.
   
2. You pleaded guilty to the charge and admitted the summary of facts outlined by the prosecution. I have reviewed the facts against the particulars of the offence laid in the information and I am satisfied that they support the necessary ingredients of the charge. I therefore convict you as charged.
   
3. The facts are that at around 1900hrs on 24 March 2012 at Meguniya, Nadi you stole a Nokia mobile phone and a packet of cigarettes all to the total value of $156.00,the property of Faiyaz Mohammed, the complainant.
   
4. On that day the complainant had left for his evening prayer. You then came to see the complainant as you do odd jobs for him, found the phone and the cigarettes, stole them and sold the phone. The phone was later recovered.
   
5. Under caution you admitted committing the offence.
   
6. Sale of stolen item, loss caused to the complainant and total lack of respect towards property right of complainant and law aggravated the offending.
   
7. Your plea of guilt, your personal circumstances and remorse are your mitigations.
   
8. Your counsel referred me to your family background in your mitigation. Also stated that you are sincerely remorseful of your actions and regret what you did. You are 29 years of age and single.
   
9. You had admitted 3 previous convictions since 1999 till 2009. However I disregard the spent conviction. Your other two convictions are live conviction for house breaking entering and larceny. I am not going to use your convictions to increase your sentence. But they may be considered for setting a higher starting point.
   
10. The offence 'Theft' carries a penalty of 10 years imprisonment according to section 291-(1) of the Crimes Decree 2009.
    
11. The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.
    
    1. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)
       
    2. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.
       
    3. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.
       
12. After taking these into my account, in your case I pick 18 months imprisonment as my starting point. I add 03 months to reflect the above aggravating factors. You are entitled to full discount for you early guilty plea hence I deduct 7 months to reflect your guilty plea. You are not entitled to any discount for your previous good character. I further discount 4 months for your mitigation. Your final sentence is 10 months imprisonment.
    
13. You have two live convictions for similar charges. I find no special circumstances to suspend your sentence although I have discretion pursuant to section 26 of the Sentencing and Penalties Decree 2009.
    
14. In the case of Joselyn Deo v The State [2005] FJCA 62 it was held that in exercising its discretion in this regard, the court must not be too quick to find special circumstances where it does not exist.
    
15. The sentence must deter you and other like minded. I therefore decline to suspend the sentence.
    
16. Twenty eight (28) days to appeal.
    

ORDER

17. I make the following order:
    

(a) ASIVURUSI TUIREVUREVU, you are hereby sentenced to 10 months imprisonment.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 2nd day of November, 2012.