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State v Varea [2012] FJMC 294; Criminal Case1223.12 (7 November 2012)

IN THE RESIDENT MAGISTRATE'S
COURT OF SUVA

Criminal Case No. 1223/2012

THE STATE

–v-

ALIPATE VAREA

For the State: WPC Fisher
For the Accused: Present

SENTENCE

1. ALIPATE VAREA, you were charged with four counts of Theft: contrary to section 291 (1) of the Crimes Decree No.44 of 2009 and particulars of offence states as follows;

Count One

You, on the 13th day of July, 2012 at Lami in the Central Division dishonestly appropriated (stole) 2 cartons x 25kg boneless mutton valued at $429.36 the property of Foods Pacific Ltd.

Count Two

You, on the 27th day of July, 2012 at Lami in the Central Division dishonestly appropriated (stole) 2 cartons x 25kg boneless mutton valued at $429.36 the property of Foods Pacific Ltd.

Count Three

You, on the 7th day of August, 2012 at Lami in the Central Division dishonestly appropriated (stole) 2 cartons x 25kg boneless mutton valued at $429.36 the property of Foods Pacific Ltd.

Count Four

You, on the 28th day of August, 2012 at Lami in the Central Division dishonestly appropriated (stole) 6 cartons x 15kg chicken breast valued at $654.24 the property of Foods Pacific Ltd.

2. You were convicted of the charges on your own pleas of guilty.

3. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;

Count One

On 13th day of July, 2012 at about 1.00pm at Wailada, Lami, Alipate Varea [Accused], 32 years, unemployed of Natogadravu Village, Nausori stole 2 cartons x 25kg boneless mutton at $214.08 a carton to the total value of $249.36 the Property of Foods Pacific Ltd. The [Accused] removed the two cartons x 25kg of boneless mutton from cooler during the lunch hour and placed underneath the fence whilst he was working for Foods Pacific Ltd. The [Accused] reported off duty at 2.30pm, picked the two cartons x 25kg boneless mutton, caught a taxi and went away.

Count Two

On 27th day of July, 2012 at about 1.00pm at Wailada, Lami, Alipate Varea [Accused], 32 years, unemployed of Natogadravu Village, Nausori stole 2 cartons x 25kg boneless mutton at $214.08 a carton to the total value of $249.36 the Property of Foods Pacific Ltd. The [Accused] removed the two cartons x 25kg of boneless mutton from cooler during the lunch hour and placed underneath the fence whilst he was working for Foods Pacific Ltd. The [Accused] reported off duty at 2.30pm, picked the two cartons x 25kg boneless mutton, caught a taxi and went away.

Count Three

On 7th day of August, 2012 at about 1.00pm at Wailada, Lami, Alipate Varea [Accused], 32 years, unemployed of Natogadravu Village, Nausori stole 2 cartons x 25kg boneless mutton at $214.08 a carton to the total value of $249.36 the Property of Foods Pacific Ltd. The [Accused] removed the two cartons x 25kg of boneless mutton from cooler during the lunch hour and placed underneath the fence whilst he was working for Foods Pacific Ltd. The [Accused] reported off duty at 2.30pm, picked the two cartons x 25kg boneless mutton, caught a taxi and went away.

Count Four

On 28th day of August, 2012 at about 6.45am at Wailada, Lami, Taniela Meke [PW-1], 30 years, labourer of Lami Village was on his way to work met Alipate varea [Accused], 32 years, unemployed of Natogadravu who was sacked on the 10th day of August, 2012. The [Accused] pulled the padlock of the main gate, entered container site, pulled the padlock of the container. The [Accused] removed six (6) cartons x 15kg chicken breast at $109.04 a carton to the total value of $654.24 from the cooler, placed underneath the fence. The [Accused] went away without taking the 6 cartons x 15kg chicken breast. Anwar Hussein [PW-2], 58 years, CEO of Foods Pacific Ltd reported the matter at the Lami Police Station. The [Accused] was arrested and interviewed under caution. The [Accused] admitted the allegation.

4. Aggravating Factors

According to the information revealed by the Summary of Facts placed before Court, you have breached trust of your employer.

5. Mitigating Factors:

I consider following mitigating factors which were brought before me on your behalf. That you are;

32 years of age, married with one child, currently unemployed, sought forgiveness, committed the offence as you were not paid overtime, remorseful, promises not to re-offend, seek a lenient and a non custodial sentencing, the sole breadwinner of the family and have to pay rent for the house.

6. Statutory Indication

According to section 291 (1) of the Crimes Decree No.44 of 2009; A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the property.

The offence of theft carries a maximum sentence of 10 years imprisonment.

It was held in Tikoitoga v State (2008, FJHC 44, HAM 088 2007) The Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vatunalaba (2010, FJHC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small.

7. Sentence

In sentencing you the Court acknowledges the factors that you;

1. Pleaded Guilty at the first available opportunity to save the Court's time and Prosecution's time in calling witnesses for a full trial.
2. You are remorseful for your action.
3. I also note that the stolen items were partially recovered.
   

In the light of Sentencing Guidelines under section 4 (1) and (2) and General Sentencing PROVISIONS under section 15(3) ) of the Sentencing and Penalties Decree I consider an appropriate sentences on you. I select 24 months as a starting point for your sentence.

In considering your early guilty plea in the first available opportunity I reduce 08 months. In view of aforementioned aggravating factors I increase 03 months, to reach the period of 13 months. I further reduce 03 months for the mitigating factors. You have one previous conviction, therefore you do not entitle for further deductions for your previous good character. Now your sentence stands for 10 months of imprisonment period for count 1-4.

In considering whether is it appropriate in the circumstances of this case to suspend your sentence The Court notes that you have admitted the allegations and you have entered a guilty plea at the earliest opportunity available and you are remorseful. Taking into account all the circumstances of this case, I am of the view of that you should not be sentence to imprisonment and given another opportunity to reform away from a custodial sentence. I suspend your sentence for 03 years in pursuant to section 26 (2) (b) of the Sentencing and Penalties Decrees.

Accordingly, I sentence you 10 months imprisonment period for four counts of theft, contrary to section 291(1) of Crime Decree No 44 of 2009.

All counts to be run concurrently.

If you commit any crime during the period of 03 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

07th November 2012.