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State v Seru [2016] FJMC 89; Criminal Case 1028.2013 (6 July 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 1028/13

STATE

-v-

VIKA MARAMA SERU

SENTENCE

INTRODUCTION AND CHARGE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

THEFT: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VIKA MARAMASERU on the 21st day of March 2013 at Suva in the Central Division dishonestly appropriated (stole) 1 x Mobile phone brand YX valued at $100.00 the property of Sera Madamada.

SUMMARY OF FACTS

2] Summary of facts that you have admitted revealed that on 21/3/13 at about 12.30pm at USP campus you took a mobile phonebrand YX TEL valued at $100.00 which belonged to one Sera Madamada,a student, when she left the phone with her friends namely TemalesiTInai and MaricaRaleloaafter a class break.

MAXIMUM SENTENCE

3] In terms of Section 291 of the Crimes Decree the maximum penalty for this offence is 10 years imprisonment

TARIFF

4] Following sentencing principles were established in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012)

(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

AGGRAVATING FACTORS

5] No aggravating factors

MITIGATING FACTORS

6] Following factors are capable of mitigating your sentence.

1. Early guilty plea
2. No previous convictions
3. Remorseful and seeks forgiveness from the court
4. Full Restitution
   

CONCLUSION

7] I shall now proceed to consider your sentence as consistent with the above factors. Your counsel has urged a non-conviction for the reason that any sentence would negatively affect your future career prospects. However your young age and career prospects are not justifiable reasons for this court to enter a non-conviction. The circumstances where a non-conviction is permissible are very clear according to the judicial precedents.

In State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009) Goundar J considered the principles upon which the discretion under the old section 44 of the CPC was to be exercised. His lordship summarized the position as follows;

"Subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender, or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v IsimeliNeneboto [2002] HAA87/02. In Commissioner of Inland Revenue v AtunaisaBaniDruavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations."

In The State v Nand Kumar Cr. App. No. HAA014 of 2000L and in considering an appeal against an absolute discharge for the offence of common assault, the court said:

"The court, in its sentencing remarks, said rightly, it was faced with "a very awkward situation" for this accused was facing dismissal from his employment if a conviction were to be entered. Nevertheless, a discharge without conviction being entered was not an appropriate sentence here. Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O'Toole (1971) 55 Cr App p 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R v Kavanagh (unreported) May 16th 1972 CA)"

Therefore it is apparent that Career prospects are no justifiable reason to enter a non-conviction. On the other hand being an adult you were fully aware of the consequences of the act.

8] Accordingly I start with 3 months imprisonment and since you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third to reach 2 months imprisonment in view of the judgment inVeretarikiVetaukula vThe State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005.

9] You have no previous convictions. Accordingly I rely on the judgment in State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90 where both SereviSereki and KameliUlunikoro were sentenced to one year imprisonment for Shopbreaking and Larceny. His Lordship Tuivaga C.J., in ordering their immediate release from prison said:

"Young first offenders should not be sent to prison, unless there are compelling reasons to do so."

You have mentioned that you have made good the loss to the complainant. Considering these mitigating factors your sentence is suspended for 1 year.

If you commit any offence punishable by prison sentence during the next 1year period you can be charged under section 28 of the Sentencing and Penalties Decree.

SUMMARY OF THE SENTENCE

2 months imprisonment that is suspended for 1 year

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

6/7/2016