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State v Harry [2017] FJMC 33; Criminal Case 149.2017 (7 March 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 149/2017

STATE

V

ELIKI HARRY

For the Prosecution : Cpl Shaw

For the Accused: Ms.Olive Grace(LAC)

Date of Sentence : 07^th of March 2017

SENTENCE

1. ELIKI HARRY, you pleaded guilty in this court to one count of Theft contrary to section 291(1) of the Crimes Decree No 44 of 2009.
2. According to the admitted summary of facts on 04/02/2017 you stole from MH Supermarket 1xcrest chicken # 12 valued at $11.50 and 1xcrest chicken#17 valued at $15.45 to the total value of $26.95.
3. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
4. Maximum penalty for Theft is 10 years imprisonment.
5. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said :

(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.

6. In Naisilisili v State [2017] FJHC 77; HAA82.2016 (8 February 2017), Justice Madigan further held that a subsequent offence of Theft would attract the sentence from 09 months to 03 years imprisonment.
7. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"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 time. 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.

8. Considering you got previous convictions for similar offence I select 16 months as the starting point.
9. The aggravating factor is this was a shop lifting and for that I add 06 months to reach 22 months imprisonment.
10. In her mitigation the learned counsel from the legal aid submitted that you are 54 years old, married with 3 children, sole bread winner, and stolen items recovered. For these I deduct 04months to reach 18 months imprisonment.
11. For pleading guilty at the earliest opportunity I deduct 1/3 to reach 12 months imprisonment.
    12. Even though you have previous convictions for similar offences, considering the value of stolen properties and your personal mitigating factors I believe a non-custodial sentence is suitable in this case.
13. Accordingly I suspend your 12 months imprisonment to 03 years.
14. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Decree.
15. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate