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State v Nand [2012] FJMC 314; CF1503.12 (20 November 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No. 1503/2012

THE STATE

–v-

RITNESH NAND

For the State: WPC Fisher
For the Accused: Present in Person

SENTENCE

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

"On 20th day of August, 2012 at Nabua in the Central Division, dishonestly appropriated [stole] Mac Master Plunge Router valued at $200.00, the property of Narendra Prakash."

2. You were convicted of the charge 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;

"On 20th August, 2012 at about 5.30pm at 359 Fletcher Road, Vatuwaqa Narendra Prakash [PW-1], 53 years old, handyman of Lot 359 Fletcher Road, Vatuwaqa had left his Mac Master Plunge Router valued at $200.00 in the spare room. [PW-1] went to check for the router machine when he discovered it being stolen from his spare room. [PW-1] who shares the flat with his nephew Ritnesh Nand [Accused], 22 years old, maintenance worker are not in talking terms and he suspected him. [PW-1] reported the matter and investigation was carried out. [PW-1] later informed the investigating officer DC 3196 Apeteriki Loco [PW-2] that he had seen his item at City Pawn Shop at Toorak. [PW-2] went to the City Pawn Shop and seized the item which [PW-1] identified it to be his. [PW-2] checked the Pawn Shop register and found that it was sold to them by Vicky Praneel Ganesh [PW-3], 36 years old of Lot 5 Rambo Street, Nasole. [PW-3] stated that the [Accused] had given him to sell the item saying that it's his and he needed money. [PW-3] sold the item and gave [Accused] $30.00. the [Accused] was arrested and interviewed under caution whereby he admitted to the allegation which was put to him."

4. Mitigating Factors:

I consider following mitigating factors which were brought before me on your behalf. That you are;
22 years of age, works at Star printer and earns $80-$85 per week, reconciled with the complainant ( uncle of the accused), remorseful and promises not to re offend.

5. Law

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.

6. Sentence

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 consider an appropriate sentences on you.

You are a first offender. I note that you have pleaded guilty at the first available opportunity. I also note that the stolen item was fully recovered.

Considering all the circumstances of this case and legal precedents on Tariff for the offence of Theft, I pick 12 months as a starting point for your sentence. You being the nephew of the complainant, who share a flat with him breached his trust and committed the offence dishonestly when you got an opportunity.In view of above stated aggravating factors I add 03 months, to reach the period of 15 months. Since you have pleaded guilty at the first available opportunity your sentence should be reduced by third. [Akili Vilimone v State 2008, FJHC 12, HAA 131-132.2007, Vetaukula v State 2008, FJCA 9; AAU 0017.2008]. Thereby I reduce 05 months for early guilty plea. I further reduce 03 months for mitigating factors to reach the period of 07 months. I note you are a first offender therefore I further deduct 04 months from your sentence leaving balance of 03 months imprisonment period.

Pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court. In this scenario I draw my attention to the case of Pita Seruvatu v State Crim.App N0.85 of 1992 where Justice Jesurathem has stated that "It has been emphasized by the Court that when the accused is a fist offender it should be the endeavor of the sentence to keep him away from prison as far as possible" Further, in Akeai Ranuku v The State Crim.App HAA 009 of 2009 Justice Daniel Goundar stated that " It is trite principle of sentencing that every effort should be made to keep young and first time offenders away from prison..."

I have also considered your mitigation and personal background. You have shown signs of remorse. Considering the circumstances of this case, I am of the view that it is just in the circumstances to suspend your sentence enabling you to reform and rehabilitate away from a custodial sentence. Wherefore I suspend your sentence for two years.

Accordingly, I sentence you, RITNESH NAND, 03 months imprisonment period suspended for 2 years for the offences of Theft contrary to section 291 (1) of Crime Decree No. 44 of 2009.

In pursuant to section 28 of the Sentencing and Penalties Decree should you commit any crime during the suspend period of 02 years and found guilty by the court you are liable to be charge and prosecute for an offence.

In addition I order that the, recovered items which is in police custody is to be returned to the owner.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

20th day of November 2012.