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State v Tuicuku [2018] FJMC 19; Criminal Case 34.2018 (5 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT LEVUKA

Criminal Case No: - 34/2018

STATE

V

JOSESE TUICUKU

For the Prosecution : WPC Siteri

The accused: In person

Date of Sentence : 05^th of March 2018

SENTENCE

1. JOSESE TUICUKU, you pleaded guilty to one count of Theft contrary to section 291(1) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. According to the admitted summary of facts between 16^th February 2018 and 19^th February 2018 at Taviya Village, Ovalau you stole 7x yaqona plants valued at $1200.00 from the complainant. These plants were not recovered.
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 10years 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. Based on an objective seriousness of the offence I select 05 months as the starting point for your sentence.
7. The aggravating factor is stealing the farm products and for that I add 06 months to reach 11 months imprisonment.
8. In mitigation you submitted that you are 23 years old, single, looking after the elderly father and a farmer. The prosecution confirmed that you are a first offender. For these I deduct 03 months to reach 08 months imprisonment.
9. For pleading guilty at the earliest opportunity, finally I deduct 1/3 to reach 05 months imprisonment.
10. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
11. In State v Ratusuka [2013] FJHC 93; HAA001.2013 (7 March 2013) his Lordship Justice Goundar said :

“Farm theft is considered a serious offence because of the value that the commodities bring to the farmer and the community. For this reason, theft of cattle, goats, livestock and root crops from farming community is usually punished by custodial sentences to deter the offenders and others from engaging in this type of conduct in the future (Sateo Tuta v State [2002] HAA 5/02B, Abdul Afiz v State [1990] HAA 0011 & 12/89S, Jone Naca v State HAA016/-02S, Penisoni Waqa v State [2004] HAA 101/04L).”

12. Even though you are a first and a young offender, I am also in the view that custodial sentence is warranted in this case to denounce your behavior and deter other people from committing similar offences in this nature in this Island.
13. Accordingly I sentence you to 05 months imprisonment for this charge.
14. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate