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State v Naidu - Sentence [2017] FJMC 135; Criminal Case 881.2017 (8 November 2017)

IN THE RESIDENT MAGISTRATE’S COURT
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION


Criminal Case No: 881 Of 2017

BETWEEN : THE STATE


AND : 1) LALIT KRISHNA NAIDU &
2) ASHNEEL KRISHNA REDDY


Before : SIROMI DOKONIVALU TURAGA ESQ
RESIDENT MAGISTRATE


Date of Sentence : 8th day of November, 2017


PC Iliesa for Prosecution
Both accused persons in person

SENTENCE

  1. You, Lalit Krishna Naidu & Ashneel Krishna Reddy are here, to be sentenced on admission of guilt on your own accord for the offence of Theft : Contrary to Section 291(1) of the Crimes Act of 2009.

Particulars of the Offence

Lalit Krishna Naidu and Ashneel Krishna Reddy on the 21st day of July, 2017 at Nadi in the Western Division dishonestly appropriated 1 x 1125ml Jim Beam valued at $118.44, 1 x 1 litre Bombay Saphire valued at $120.00, 3 x 1 litre Absolute Vodka valued at $379.84 and 1 x 1 Litre Disaronno valued at $124.99, all to the total value of $743.27, the property of Tapposs Company Limited, with the intention of permanently depriving the said Tappoos Company Limited.


  1. Summary of facts noted that on the 21st day of July 2017, at about 00.25am, at the Tappoos Company Limited, at Waikamu Subdivision, Nadi Town, one Lalit Krishna Naidu (accused 1) 26 years, Fork lift driver of Uciwai, Nadi and Ashneel Krishna Reddy (accused 2 ) 22 years, Warehouse Assistant of Nawaicoba, Nadi, dishonestly appropriated 1 x 1125ml Jim Beam valued t $118.44, 1 x 1 litre Bombay Saphire valued at $120.00, 3 x 1 litre Absolute Vodka valed at $379.84 and 1 x 1 litre Disaronno valued at $124.99, all to the total value of $743.27, the property of Tappoos Company Limited, with the intention of permanently depriving the said Tappoos Company Limited.

Both accused persons were employed at the Tappoos Company Limited Warehouse in the above mentioned place. On the above mentioned date, time and place, Emori Dawai, 42 years, Security officer of Dratabu Village, was posted at the Warehouse as a Night Shift Security Officer and patrolling outside when he saw accused 1 parked his vehicle behind the Warehouse. The security officer pproached the vehicle and saw accused 1seated in the driver’s seat and around the same time, he saw accused 2 approaching the vehicle with a carton of Absolute Vodka and placed it inside accused 1’s vehicle. Security Officer asked them what was in the carton, accused 2 discussed with accused 1 and after consulting him, he gave a bottle of Absolute Vodka to the Security Officer.


Security Officer informed the matter to his Supervisor and was advised to report the matter to the Nadi Police Station and later confirmed the value of the items and that the items were stolen from their Warehouse. Both accused persons were located; caution interviewed and accused 1 denied the allegation whilst accused 2 admitted stealing the items with accused 1. Accused 2 said that he only took 1 bottle of Disaronno Liquor as per Question and Answers 41 – 53 of his interview. Police recovered from accused 1 a bottle of Disaronno Liquour and that he had voluntarily hand over to his Supervisor a carton of Absolut Vodka after incident was reported. Both accused persons were jointly charged for the offence of Theft: Contrary to section 291 (1) of the Crimes Act 2009.


Sub Recovery

Item Value

1 x 1125ml Jim Beam $118.44

1 x 1 Litre Bombay Saphire $120.00

3 x 1 Litre Absolute Vodka $379.84

1 x 1 Litre Disaronno $124.99

Total Value $743.27


  1. Both admitted to the summary of facts hence I convict each of Theft.
  2. The maximum under section 291(1) for Theft is punishable by Ten (10) years Imprisonment.
  3. Both are first and young offenders.
  4. In mitigation you said the following:

Accused 1:

  1. 22 years & Single;
  2. There is no criminal history of the accused;
  1. Remanded in for the last 14 days and this be considered, with respect as punishment enough to a young offender with no history of criminal offences;
  1. Reside with his father and mother in Nawaicoba, Nadi in a farming Community;
  2. Now employed as a Carpenter and earns about $180 per week;
  3. I wish to apologize what I did;
  4. I am sorry;
  5. Promise it will never happen again and never to attend court again; and
  6. Seek a lenient sentence.

Accused 2

  1. 22 years and single;
  2. Reside with his father and mother in Nawaicoba, Nadi in a farming Community;
  1. Has passed his form six examination and was unsucesful in his seventh form examination at Sangam College (SSKMC) in Nadi;
  1. Seek forgiveness;
  2. Was part of and attended the Vunavilli Ramayan Faag Mandali of Nawaicoba and also took part in their soccer team.
  3. Very helpful youth in the village, which is multicultural community and has not stopped in helping and assisting persons and families in his community;
  4. Also sickly, as he as continuous stomach issues for which he needs treatment;
  5. He has enquired to enroll with the Fiji National University (FNU) from January 2018 in a sixth month course in electrical and joinery works;
  6. Understand what he did wrong;
  7. Promise not to reoffend;
  8. First offender;
  1. Seek leniency;
  1. Seeks second chance and asks for conviction not to be entered; and
  2. Complete recovery.
  1. In Waisale Vakarauvanua v State (2004) FJHC 116, HAA 0051.J.2004S the Court held the tariff is in between 2 to 9 months imprisonment for the offence of Theft. In the case of Niudamu HAA28.2011, Madigan, J held that the tariff for theft by a first offender should be between two to nine months.
  2. The dicta of Shameem J. in Jone Saukilagi HAC21. 2004 are most helpful. Her Ladyship said this:

"the tariff for simple larceny on a first conviction is from two to nine months and on a second conviction a sentence in excess of nine months. In cases of larceny of large amounts of money sentences of 18 months to three years have been upheld by the High Court. (Sevanaia Via Koroi HAA31.2001). Much depends on the value of the money stolen and the nature of the victim and defendant. The method of stealing is also relevant."

  1. In Ratusili v State [2012] FJHC 1249; HAA 011.2012 (1 August 2012) Justice Paul Madigan analyzed previous case authorities and set the tariff for Theft. His Lordship identified the tariff for simple theft as between 2-9 months. His Lordship suggested that any subsequent theft offending should attract a penalty of at least 9 months. Further, theft of large sums of money and theft in breach of trust, whether first offence or not can attract sentence up to 3 years. Planned theft will attract greater sentence than opportunistic theft.
  2. In State .v Sakiusa Bole – HAC 38 of 2005, Shameem J. said:

"In breach of trust casesp comly less weight isht is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust&#which is t is the harm done in these offences."


  1. In Mereoni Naitu .v. Stateinal Appeal No: HAA 26< of 2012 [from Suva Magistrate’s Court Case No. 875/2012] Madigan, J considered an appeal from the Magistrate Court on 2 counts of larceny by servant wherein the accused was employed as a teller at a major retail bank and that she stole the sums of $2380 and $2627 respectively. The appellant was sentenced on the 19th September 2012 to two concurrent terms of 21 months’ imprisonment with a minimum term of 18 months to be served. Justice Madigan, stated granting the appeal made the following observations:

“6. The Magistrate quite properly took 18 months as a starting point for each of these offences and for the aggravating features (breach of trust and planned offending) she added a further twelve months. For the mitigating features of guilty plea, first offender and remorse she deducted nine months for each offence arriving at concurrent totals of 21 months’ imprisonment.


  1. The sentence is quite properly arrived at except that perhaps more credit should have been afforded to the appellant for the strong mitigating features. She is a first offender and had pleaded guilty at the earliest opportunity she could. She had been co-operative throughout and was remorseful. Such mitigation must be balanced by the need to discourage persons working with money to be tempted to steal. Although counsel below did tell the Court that she was willing to repay the monies stolen, this was never developed or recognized by the Court, and perhaps the Magistrate thought the offer was unrealistic. Not too much credit then can be given for such an offer of restitution (if indeed it was realistically advanced).
  2. Pursuant to s.256(2) of the Criminal Procedure Decree 2009 I now quash the sentences passed below and sentence afresh.
  3. I adopt the Magistrate’s starting point of 18 months for each offence. I add (as she did) a further 12 months for the abuse of trust of her employer and for the planning of the thefts. Her mitigation features are:

and for that I deduct nine months making an interim total of 21 months’ imprisonment.


  1. For the very early guilty plea I deduct a full one third of that sentence arriving at a final total term of imprisonment of fourteen months imprisonment. The crime being a breach of trust and there being no restitution or realistic likelihood of restitution, it is not an appropriate sentence to be suspended in whole or in part” [ underlne my own emphasis]
  2. In Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5 March 2013) Justice Gounder observed:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range”.


  1. I have considered Sections 4 [1], 4[2] and 15[3] of the Sentencing and Penalties Act to arrive an appropriate sentence, giving regards to the circumstances of the case and the relevant laws.
  2. I adopt 1 year as my starting point
  3. The aggravating factor was the breach of and betrayal of trust by both of you against your employer and bribed the Security officer with a bottle of liquor in the hope that he will not report the matter, I add 18 month and your interim sentence is 30 months.
  4. For your respective early plea, I deduct 10 months, the interim sentence is reduced to 20 months.
  5. Considering your respective mitigating factors and full recovery, I further reduce 6 months.
  6. Both of you are sentence to 14 months imprisonment.
  7. Since your sentence is less than 2 years imprisonment, under section 26 of the Penalties and Sentencing Act 2009, I have to decide whether this case merits that suspension of the sentences.
  8. Breach of trust cases attracts custodial sentence unless there are exceptional circumstances, sentence may be suspended.
  9. In Khan v State [2016] FJHC 953; HAA24.2016 (24 October 2016) an appeal on the sentence of 18 months’ imprisonment without a non-parole period after a trial, the court dismissed the appeal noting that “ the sentence imposed by the learned Magistrate is neither excessive nor unreasonable”. One of the appeal ground were advanced by the appellant that the Magistrate Court had erred were in failing to considered that accused is a first offender, suspension of the sentence and relevant provisions of the Sentencing and Penalties Act 2009 were not considered. His Lordship Justice Aruna Aluthge in his assessment of the sentence noted that the learned Magistrate has rightly balanced the need for rehabilitation with that of deterrence and that:

“Case authorities in Fiji do not recommend imposing a suspended sentence where there is a breach of trust situation; a degree of preplanning, no restitution had been done and no genuine remorse is manifested even though the convict is a first offender. Therefore, learned Magistrate’s decision to impose an immediate custodial sentence is not obnoxious to the provisions of the Sentencing and Penalties Decree or sentencing guidelines entrenched in our legal system. Therefore, any kind of interference with the sentence imposed by the learned Magistrate is not warranted in this case”.

  1. This was a case of opportunistic theft, the amount was small, full recovery, young and first offenders, both made an early plea and this save court of further expanses and were remanded for 14 days
  2. The question for this court is whether the 14 days in remand is sufficient to reflect the seriousness of the charges.
  3. I take judicial notice that theft involving abuse of trust is one of the prevalence of this offence in Nadi. In that regard, a combination of deterrence and rehabilitative sentence would be appropriate to send a strong signal that thefts by employees must stop forthwith. I adopt the observation of His Lordship Mr. Priyantha Nawana in State Prosecution v Tilalevu [2010] FJHC 258; HAC 081.2010 (20 July 2010) held that:

“I might add that the imposition of suspended terms on first offenders would infect the society with a situation-which I propose to invent as ‘First offenders Syndrome’ –where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard if self against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.”


  1. On the same basis, the submission by no conviction to be entered for accused 2 lacks merits. The conduct of accused 2 was not a technical breach. He was the one who brought the cartoon of assorted liquors from the Warehouse and he was employed as a Warehouse Assistant and according to him, both planned to commit the offence [denied by accused 1] to permanently deprive their employer - Tappoo.
  2. I will order that both accused to each serve 4 months imprisonment and the balance of 10 months is suspended for 3 years.
  3. I deduct period in remand of 14 days.
  4. Final sentence: Custodial sentence of 3 months and 17 days and 10 months imprisonment suspended for 3 years.
  5. Right of appeal within 28 days..

Dated at Nadi this 8th day of November, 2017.


..........................................
Siromi Dokonivalu Turaga
RESIDENT MAGISTRATE

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