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State v Maro [2013] FJMC 375; Criminal Case 221.2013 (16 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 221/13

BETWEEN:

THE STATE

AND:

VILITATI MARO

Prosecution: Cpl Chin Samy
Accused: In Person

SENTENCE

1. Vilitati Maro you pleaded guilty to theft contrary to section 291(1) of the Crimes Decree No. 44 of 2009.
   
2. You waived your right to counsel and opted to represent yourself. You pleaded guilty voluntarily to the charge when it was read and explained. You also accepted the facts tendered by prosecution.
   
3. The Court is satisfied that your guilty plea is unequivocal and you are convicted as charged.
   
4. Between 9th and 22nd November 2012 the Vitawa Methodist Church of Vitawa Village Rakiraki Ra did some fundraising. Two groups were formed and the total raised was the sum of $10, 583.60. The money was deposited into the bank of Baroda account of one Mereani Lomawai, 30yrs, a school teacher and complainant in this case. About $3,700.00 was withdrawn on 8/11/12. From the amount withdrawn $3,698.00 was paid to Haroons Hardware and $7.00 paid for carrier fare from Vitawa Village to Rakiraki town.

On 9/11/12 the complainant withdrew $6,483.51 and gave it to one Tevita Rabulu the consultant of Vitawa Youth group. Tevita paid $3,698.00 to Haroons Hardware. The remaining amount which was $2, 829.55 Tevita then gave to you (accused) as leader of the group. You used $460.00 to pay the carpenter, $5.00 was used to pay for the yaqona and the remaining fund was $2,319.55. This left over funds you then used it for your own use and benefit.
The matter was reported to police and you were cautioned interviewed and charged accordingly for the alleged offence.

5. You were given the opportunity to mitigate and stated the following:
   
   • You've 24yrs old and single.
   • You live with your father at Vitawa Village.
   • You've a carpenter and get paid on the projects that you do.
   • Requested for forgiveness and this is your first offence.
   • You've ready to pay back the sum you've used.
   • You promised not to re-offend.
     
6. The following features I would regard as aggravating:
   
   • Benefit derived from the offence.
   • Breach of trust.
   • The amount used cannot be said to be a small amount of money.
     
7. Theft under the Crimes Decree carries a maximum imprisonment term of 10 years.

The guideline in case authorities suggest that tariff for theft ranges from 2-9 months for 1st convictions and between 9 – 24 months for 2nd convictions depending on the value of the goods and circumstances of the stealing. (see: State v Saukilagi [2005] FJHC 13; Ronald Vikash Singh v State HAA 035 of 2002)

8. The offending in this case in my opinion is fraud related and cannot be regarded as a simple theft case. The said money was in you lawful custody to be used for some lawful purpose however you used the remaining funds for your own benefit. Hence the appropriate tariff for this offending would be between 18 months – 3 years imprisonment.
   
9. In considering the circumstances of the offending in this case, I take a starting point of 24 months imprisonment.
   
10. For the aggravating factors I increase your sentences by 3 months. Your sentence now stands at 27 months.
    
11. For your mitigation and this being your first offence I will deduct your sentence by 7 months. For your guilty plea I will further reduce your sentence by 8 months. Your final sentence will now be 12 months imprisonment.
    
12. I now consider whether to suspend your sentence. You had indicated to the court that you were willing to restitute the money if given time. However from the date this matter was first called till today, there is nothing on record to show that you had to some extent re-paid or restituted the money. If some restitution was made earlier rather than awaiting the outcome of sentence that would have been an indication of sincere remorse on your part. However your request for time to be given to repay the stolen money is not a genuine gesture of sincere remorse on your part but a calculated attempt to buy your way out of a prison term.
    
13. In the courts opinion a strong deterrence is warranted in the public interest. There are no exceptional or compelling circumstances to wholly suspend your sentences. A part imprisonment term and part suspended term would be appropriate for your rehabilitation.
    
14. I therefore order that you Vilitati Maro be imprisoned immediately for 6 months. The remainder of 6 months will be suspended for 2 years.
    
15. If you commit any offence within the operational period of 2 years, you will be further charged for breaching the suspension order and if convicted you'll be made to serve 6 months imprisonment or part of it with any other punishment imposed in that other offence.
    
16. This sentence would be a lesson to you and a warning to others who might have similar impulses.
    
17. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

16th October 2013