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State v Mani [2016] FJMC 232; Criminal Case 239.2016 (16 December 2016)

IN THE JURISDICTION OF THE MAGISTRATES COURT AT SIGATOKA
IN THE WESTERN DIVISION

Criminal case No. 239/2016

THE STATE –v- JANADRAN MANI

Before : Resident Magistrate, TomasiBainivalu

For the Prosecution: WPC 3348 ElinaLotudina

For the Accused : Mr Chand of LAC

Date of Sentence: 16^thDecember, 2016 @ 2.30pm

S E N T E N C E

The Charge and Facts

1. The accusedJanadran Mani has pleaded guilty to four [4] counts of theft contrary to section 291 of the Crimes Decree, and has accepted as true the prosecution’s summary of facts and account of his offending. I find him guilty and convict him accordingly.
   
2. The facts you had admitted outlined in open court by the prosecution stated as follows:-

First Count

“On the 23^rd day of May 2016 at Sigatoka one Janadran Mani [B-1] aged 48 years Carpenter of LomawaiSigatoka stole ANZ ATM card numbered 0600998930012219 valued $10.00 property of VyasDeo [A-1] aged 57 years, Steward of Naidovi, Sigatoka with intent to permanently deprive the said [A-1].
Second Count

On the 23^rd day of May 2016 at Sigatoka one Janadran Mani [B-1] aged 48 years Carpenter of LomawaiSigatoka stole cash $1503.00 property of VyasDeo [A-1] aged 57 years Steward of NaidoviSigatoka with intent to permanently deprive the said [A-1].

Third Count

On the 24^th day of May 2016 at Sigatoka one Janadran Mani [B-1] aged 48 years Carpenter of LomawaiSigatoka stole cash $1803.00 property of VyasDeo [A-1] aged 57 years Steward of NaidoviSigatoka with intent to permanently deprive the said [A-1].
Fourth Count

On the 26^th day of May 2016 at Sigatoka one Janadran Mani [B-1] aged 48 years Carpenter of LomawaiSigatoka stole cash $1503.00 property of VyasDeo [A-1] aged 57 years Steward of NaidoviSigatoka with intent to permanently deprive the said [A-1].

On above date time and place [A-1]’s wife namely KiranMati [A-2] aged 51 years, Domestic duties of CuvuSigatoka was keeping [A-1] ’s ANZ ATM card. When [A-2] wanted to withdraw some cash and she found out the ATM card was missing from her purse. Search was conducted but was unsuccessful. Then [A-1]’s daughter namely KomalKabita Sharma [A-3] aged 23 years clerk of Newtown CuvuSigatoka came down to the bank and enquired about the account balance and she found out that $4809.00 was being withdrawn from BSP ATM Sigatoka town and Cuvu ANZ ATM on separate occasions. Matter was reported to Police for investigation. Search warrant was prepared and the CCTV camera of BSP bank was viewed and [A-2] identified [B-1] as he was employed by [A-1] as a carpenter at his house doing renovation works.

[B-1] was arrested and interviewed under caution and admitted withdrawing cash after he found the ATM card inside the house. [B-1] was charged for theft. [B-1] bailed to attend court on 4/7/2016. $4300.00 has been recovered and exhibited in police custody.”

3. The prosecution further informed the court that the sum of $4,300.00 already recovered and the accused is making arrangements to restitute the balance to clear the full amount.
   

The Law and Tariff

4. The maximum penalty for theft is 10 years imprisonment. For simple theft, the tariff is 2 – 9 months’ imprisonment for a first offending for theft, and for subsequent offending, at least 9 months imprisonment. (See MikaeleRatusili v The State Criminal Appeal No. HAA 011 of 2012) In Ratusili (ante) Madigan J, referring to a number of cases of theft, stated at paragraph 13:
   

   From the cases then the following sentencing principles are established:

   (i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

   (ii) any subsequent offence should attract a penalty of at least 9 months.

   (iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

   (iv) regard should be had to the nature of the relationship between offender and victim.

   (v) planned thefts will attract greater sentences than opportunistic thefts.

5. Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar natures;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

6. Section 4[2] of the Decree outlines what a sentencing Court must consider when sentencing an offender:

(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 proceeding 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;

(l) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or 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

The Mitigating Factors

7. In mitigation your Counsel had submitted the following :-

Plea in Mitigation Submission of Janadran Mani

The Accused namely Janadran Mani has pleaded guilty to one count ofTheft, in accordance with the prescriptions of Section 291 of the Crimes Decree No. 44 of 2009. The Accused now wishes to submit the following in mitigation.

1.0 PERSONAL BACK GROUND

1.1 Mr. JanadranMani, is 49 years old.

1.2 He is married with 3 children, and resides in Lomawai, Sigatoka with his wife.
1.3 He is a Carpenter by profession, and earns a wage of $200.00 per week.

1.4 He is the sole breadwinner of his household, and supports his wife and 24 year old daughter who is currently attending Lautoka Teacher’s College.

2.0 CIRCUMSTANCES OF THE OFFENDING
2.1 Mr. Mani was doing some renovations at the residence of the Complainant, Mr. VyasDeo.
2.2 During this, he withdrew some money for Mr. VyasDeo as a Complainant did not know how to use the BSP ATM machine. As such, Mr. Mani had knowledge of the Complainant’s Personal Identification Number (PIN).
2.3 On the 23^rd day of May, 2016 Mr. Mani came across an ATM card lying near the house door. He took this card and kept it with him.
2.4 He had then used the same ATM card, on a few occasions between the 23^rdday of May, 2016 to the 26^th day of May, 2016 to withdraw money which totalled up to $4800.00.
3.0 MITIGATING FACTORS

3.1 Mr. Mani is 49 years old, and has maintanined a clean record till date. This stands to be his first offence. As such, he seeks forgiveness from this Honourable Court and is willing to reform should he be given an opportunity. He is remorseful for his actions and deeply regrets what he has done as it has brought concern and worry to his family. I seek the courts indulgence in the case of Suren Singh v The State [2000] FJHC 264; 2 FLR 127 where the learned Judge NazhatShameemstated that:-

“However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”

3.2 Mr. Naiyalatabuhas shown remorse for his actions and has entered an early guilty plea. In doing so, he has saved the Prosecution and the Court’s time and expenses from a full hearing. In view of this, I seek the courts indulgence on the basis that he pleaded guilty at the first available opportunity, hence his sentence should be reduced by a third - Vilimone v State 160;[2008] FJHC FJHC 12; HAA 131-132.2007.

We would to refer to the case of Hem Dutt v State [2006] FJCA 59 which s:-

“The principal matter of mitigationation reducing the sentence is the fact that the appellant admitted the of early and pleaded guilty at the first opportunity. In cases of rape that will result in a in a substantial reduction. The judge does not mention whether he allowed for the plea of guilty. He undoubtedly should have done. In this case, the early plea could reasonably have reduced the sentence by anything between a quarter and third. ”

H>Hence, we submit that the Accused must be given substantial remission for his early guilty plea.