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Magistrates Court of Fiji |
IN THE MAGISTRATE'S COURT AT TAVEUNI
Criminal Case No: 270 of 2011
STATE
V
1] RAJEN KUMAR
2] RAVINDRA KUMAR
Detective Constable Mr. Farman appeared for the prosecution.
Both accused appeared in person.
SENTENCE
1. You, Rajen Kumar and Ravindra Kumar, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:
Theft: Contrary to the section 291(1) of the Crimes Decree No.44 of 2009
This case is for hearing and all witnesses were present yesterday. You said you are willing to take progressive approach. Then, your rights were explained and you chose to defend yourselves. Then again your charge was read over and explained to you. You said you understood it. You pleaded guilty to the charge. I am satisfied that your plea is unequivocal and that you understand the repercussion of your plea. I convict you both as charged.
2. According to the facts, (which you have admitted), on 04th November 2011, you stole 1 bag of Dalo valued at $90. You admitted the offence at your cautioned interview.
3. Maximum penalty could be imposed for Theft is 10 years.
4. In Tomasi Turuturuvesi v State[2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment,
the question of suspension being revered for young first offender. 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".
5. There are no aggravating factors in this case.
6. You both have no previous convictions.
7. Considering value of property, I select 6 months imprisonment as the starting point of this case.
8. In mitigation, first accused said that he is 25 years old, married with a one child he earns $70 per week. He also supports his mother. He is remorseful of the offence and asked non custodial sentence. The second accused said he is 18 years old famer earns $150 per month. He is remorseful. Both are willing to pay the compensation.
9. You pleaded guilty to the charge at the first instance and saved court's resources. Therefore, 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 4 months imprisonment.
10. For you mitigating factors I reduce another 1 month and your actual sentence is now 3 months imprisonment. Should I suspend this sentence?
11. I note you both are a first offender. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.
Section 4(2) provides;"In sentencing offenders a court must have regard to
(a) the maximum penalty prescribed for the offence;
(b) current sentencing practice and the terms of any applicable guideline judgment;
(c) the nature and gravity of the particular offence;
(d) the offender's culpability and degree of responsibility for the offence;
(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;
(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;
(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;
(i) the offender's previous character;
(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and
(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."
12. I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009
"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."
Now, I turn to the Case law in this regard.
13. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders ought to be y strong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has exploredexhauall other alternative sentences. (Emphasize is mine)
14. Inb> Pras 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 first offende>."
15. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first offender&#s concernederned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public int or in the interest of the offender himself. (Emphasize is mine).
16.
"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."
17. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed;
"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."
18. In State v Moceva#160; [1990] FJHC 87; 87; [1990] 36 FLR 19 (14 February 1990) Fatiaki J (As he then was) dealt with similar type of situation. His Lordship stressed on sentencing in young offenders. His Lordship added;
"This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders out of prison even I might add at the risk of being lenient.
Needless to say, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender.
If I may say so society has no greater interest than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important consideration in sentencing young first offenders." (Emphasize is mine).
19. Thus as a first offender and according to the Sentencing Principles, I think you should be given another chance to reform yourself.
20. I therefore suspended this 3 month imprisonment for next 2 years. If you committed another offence during the operation of suspended sentence, the prosecution will file a case to activate this sentence. You are given final chance and severely warned not re-offend.
21. In addition, under the Section 31(2) of Sentencing and Penalties Decree of 42 of 2009, you are ordered to pay $100 compensation ($50 each) to the victim, in default 10 days imprisonment.
This is your sentence: 3 months imprisonment suspended for 2 years and $100 to be paid to the victim as compensation.
22. 28 days to appeal.
Delivered on 25th April 2012 at Taveuni, Fiji Islands
Sumudu Premachandra
Resident Magistrate- Taveuni
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