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State v Salabab [2013] FJMC 101; Criminal Case 25.2013 (5 March 2013)

IN THE RESIDENT MAGISTRATE’S COURT AT NAVUA

Criminal Case No: - 25/2013

STATE

V

VASITI SALABABA

For Prosecution : - Sgt . Lenaitasi

Accused : - Mr. Tawake from the Legal Aid.

SENTENCE

1. VASITI SALABABA, you were charged in this Court for the offence of Theft contrary to section 291 of the Crimes Decree No .44 of 2009.
   
2. When the charge was first read, you wanted to apply for the Legal Aid. Therefore relevant disclosures were served and you were given time to get the Legal Aid.
   
3. On 31/01/2013 you pleaded guilty with the assistance of the Legal Aid. You also admitted the summary of facts.
   
4. Summary of facts showed that you were a pre-school teacher in the Navua Mission Kindergarten and between 01/04/2012 and 30/10/2012 you dishonestly appropriated (stole) $310.00 which were the school fees.
   
5. This Court is satisfied about your plea and convicts you for the above offence.
   

The Law and the Tariff for Theft

6. Section 291 of the Crimes Decree sets down the maximum penalty for this offence as 10 years imprisonment.
   
7. In Jone Saukilagini [2005]FJHC 13 Her Ladyship Justice Shameem held that “the tariff for simple larceny on a first conviction is from two to nine months. In cases of larceny of large amount of money sentence of 18 months to three years have been upheld by the High Court”
   
8. Considering the facts in this case I take 06 months imprisonment as your starting point.
   

Aggravating factors

9. Aggravating factors are breach of trust and this was committed over a period of time. For this I add 06 months to your sentence to reach 12 months.
   

Mitigating factors

10. You pleaded at the first available opportunity. For that I follow the case of Vilimone v State [2008] FJHC 12; HAA and reduce your sentence by a third to reach 08 months.
    
11. Learned counsel from legal Aid in mitigation submission highlighted the following points also.
    
    1. 46 years old
    2. Married with a child
    3. Supports the family as her husband is paralyzed
    4. Seeks forgiveness
    5. Remorseful
    6. First offender
    7. Restituted full amount
       
12. For the above mitigating factors I reduce another 03 month. Now your final sentence would be 05 months imprisonment.
    
13. This Court has the power to suspend a sentence which does not exceed a 02 years under section 26(2) (b) of the Sentencing and Penalties Decree.
    
14. In State v Raymond Roberts [2004] FJHC 51 Her Ladyship Justice Shammem 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."
    
15. Therefore this Court believes you need to be given a chance for the following reasons.
    
    1. You are a first offender
       
    2. You restituted the full amount on 20 Oct 2012 long before you appeared before this Court
       
    100. Your family would face hardship
         
    4. You saved the Court's resources by pleading guilty at the first chance you got
       
    5. The value of the amount is small
       
16. Accordingly I sentence you to 05 months imprisonment and suspend that for 01 year.
    
17. If you commit any offence punishable by prison sentence during the next 01 year you can be charged under sec 28 of the Sentencing and Penalties Decree.
    
18. 28 days to appeal
    

05/03/2013

H.S.P.Somaratne
Resident Magistrate, Navua