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State v Togadau - Sentence [2019] FJMC 75; Criminal Case 106 of 2019 (31 May 2019)

IN THE MAGISTRATES COURT OF FIJI
AT LABASA


CRIMINAL JURISDICTION


Criminal Case No. 106 of 2019


STATE


-v-


  1. INIA TOGADAU
  2. RUPENI CAGIMAIWAI


For the State: Constable V. Chand
For the Defendants: Ms. Marama, of counsel instructed by the Legal Aid Commission


SENTENCE


  1. INIA TOGADAU and RUPENI CAGIMAIWAI you both entered individual pleas of guilty to THEFT contrary to section 291 (1) of the CRIMES ACT 2009.
  2. The particulars of offence are as follows:

“INIA TOGADAU and RUPENI CAGIMAIWAI between the 1st day of January, 2019 to 20th day of February 2019 at Dreketi in the Northern Division dishonestly appropriated 7 x nanny goat valued at $1, 050 and 2 billy goats valued at $260.00 to a total value of $1, 310.00, the property of JITENDRA PRASAD with the intention to permanently deprive the said JITENDRA PRASAD.”


  1. The State’s Summary of Facts were read out to you both in open court and translated into Bauan for your benefit. You each said that you understood and admitted the Summary of Facts.
  2. The Summary of Facts read as follows:

“Between the 1st day of January 2019 to 20th day of February 2019 at Dreketi, Inia Togadau, 28 years fisherman of Raviravi Village and Rupeni Cagimaiwai, Farmer of Raviravi Village, stole 7 nanny goat valued at $1, 050.00 and 2 x billy goat valued at $260.00 all the total value of $1, 310.00, the property of Jitendra Prasad 50 years farmer of Nacula Settlement Dreketi with intention to permanently deprive the said victim.


On the said date, time and place Jitendra Prasad had checked his goats where it was grazing and found them missing. He then received information that some of his goats are tied to (sic) Raviravi Village. He then sought assistance from the Police and they went to Raviravi Village to check. Upon arriving at the village the Turaga Ni Koro Emosi Qaumila, 49 years of Raviravi Village then assisted Jitendra Prasad and the Police Officer to where the goats were tied. Jitendra Prasad then identified all the goats as his.


....Both accused were arrested and interviewed under caution and admitted in (sic) stealing the goats and were charged for the offence of theft.”


  1. Constable Chand tendered a picture of Mr. Prasad identifying his goats. You each looked at the picture and you each admitted that these were the goats that you had stolen and which were subsequently recovered from your village.
  2. Your individual Records of Interview were tendered and shown to you in open Court. You each indicated that you had given the answers contained in the Record of Interview that applied to you. Moreover, you each separately indicated that you had given your answers freely and voluntarily during your Interview.
  3. In your Interviews, you each admitted to having stolen 9 goats and bringing them to your village by boat. You each admitted to having worked together to steal those goats.
  4. I am satisfied that you each knew what you were about when you entered your guilty pleas. I am satisfied that your pleas were unequivocal. I find each of you guilty and I convict you INIA TOGADAU and you RUPENI CAGIMAIWAI of THEFT as charged.

Maximum Penalty & Tariff


  1. The maximum penalty for this offence is 10 years imprisonment.
  2. The tariff is outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) per Madigan J. as follows:

(i) For a first offence of simple theft the sentence 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 the offender and victim.

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


Aggravating Factors


  1. This was a planned theft. You made arrangements to travel to the primary scene of crime by boat, you loaded those goats onto that boat, and you made your get-away by boat.
  2. This was no simple opportunistic theft.
  3. Moreover, you took Mr. Prasad’s livestock. Animals that represented his livelihood. Animals that represented a continuing investment in time and feed and care over and above his initial expenditure at purchase.
  4. No doubt the loss of his goats and the subsequent efforts to find them caused him unnecessary inconvenience and worry.

Mitigating Factors


Inia Togadau

  1. You are 28 years old. You are married and you have two children, a 4 year old and a 6 month old son. You fish and earn $200.00 a week. You are the sole bread-winner for your family.
  2. You are truly remorseful, I am told. You cooperated fully with the Police and you entered a guilty plea at the first available opportunity. You said that it was bad judgement on your part. You deeply regret your actions. All the goats you stole were recovered.
  3. You are not a first offender but this is your first offence for theft. Moreover, this is your first offence in near on 7 years. Your last convictions for assault causing bodily harm and found in possession of underwater apparatus without licence were entered in 2012.

Rupeni Cagimaiwai

  1. You are 19 years old. You have two children, a 1 year old and a 7 month old. You are a yagona farmer who earns $1, 000.00 a month. You are deeply remorseful and you promise not to re-offend.
  2. You are the sole-bread winner for your family. You cooperated with the Police and entered an early guilty plea. You promise not to re-offend and you seek leniency from the Court.
  3. More than that, Counsel submits, you were a follower and not the leader of the joint enterprise. That role fell to your uncle, the first Accused.

Sentencing
Inia Togadau

  1. I pick a starting point of 6 months imprisonment. I increase this sentence by 3 years for the aggravating factors identified in this case. This was a pre-planned theft of another’s livelihood. You intended to benefit from the results of another man’s care and labour.
  2. Your sentence is now 3 years and 6 months.
  3. I decrease your sentence by 6 months for your personal circumstances. Your sentence is now 3 years.
  4. I note that the goats were recovered. I reduce your sentence by 3 months. Your sentence is now 2 years and 9 months.
  5. Your counsel submits that you fully cooperated with the Police. What this actually translates to is that you fully admitted the offence after the goats were recovered. I reduce your sentence nominally by one month for this factor. Your sentence is now 2 years and 8 months.
  6. I accept that you entered a guilty plea at the first available opportunity. This is a factor to your credit. You saved the Court, time and the State the resources it would otherwise have expended to run a full trial. You were honest about your wrong-doing when you were questioned by the Police and you were forthright during the sentencing hearing. I received the distinct impression that you understand the gravity of what you have done and are genuinely remorseful.
  7. I give you a one third reduction for your guilty plea. I reduce your sentence by 11 months for this factor. Your sentence is now 1 year and 9 months.
  8. I am empowered to suspend sentences of 2 years or less pursuant to section 26 (2)(b) of the Sentencing and Penalties Act 2009. After carefully considering your mitigating factors against the aggravating factors of this case, I decide that you are a good candidate for rehabilitation, your 2012 previous convictions notwithstanding.
  9. I decide to give you another chance. I suspend your sentence of 1 year and 9 months for a period of 3 years.
  10. You must not commit another offence in the next 3 years. If you do, you may find yourself serving the 1 year and 9 month term I suspended today.

Rupeni Cagimaiwai

  1. I pick a starting point of 6 months imprisonment. I increase this sentence by 3 years for the aggravating factors identified in this case. This was a pre-planned theft of another’s livelihood. You intended to benefit from the results of another man’s care and labour.
  2. Your sentence is now 3 years and 6 months.
  3. I decrease your sentence by 6 months for your personal circumstances. Your sentence is now 3 years.
  4. I note that the goats were recovered. I reduce your sentence by 3 months. Your sentence is now 2 years and 9 months.
  5. Your counsel submits that you fully cooperated with the Police. What this actually translates to is that you fully admitted the offence after the goats were recovered. I reduce your sentence nominally by one month for this factor. Your sentence is now 2 years and 8 months.
  6. This is your first offence. I reduce your sentence by 6 months for your previous good character. Your sentence is now 2 years and 2 months.
  7. Moreover, I accept that you were a follower and not the leader of this joint enterprise. However, I also note that by your own admissions, you were an equal and somewhat enthusiastic participant in the crime. It was your boat that was used, and you captained it by all accounts. I reduce your sentence nominally by 2 months for this factor. Your sentence is now 2 years imprisonment.
  8. I accept that you entered a guilty plea at the first available opportunity. This is a factor to your credit. You saved the Court, time and the State the resources it would otherwise have expended to run a full trial. You were honest about your wrong-doing when you were questioned by the Police and you were forthright during the sentencing hearing. I received the distinct impression that you understand the gravity of what you have done and are genuinely remorseful. I give you a one third reduction for your guilty plea. I reduce your sentence by 8 months. Your sentence is now 1 year and 4 months.
  9. I am empowered to suspend sentences of 2 years or less pursuant to section 26 (2)(b) of the Sentencing and Penalties Act 2009. After carefully considering your mitigating factors against the aggravating factors of this case, I decide that you are a good candidate for rehabilitation.
  10. I decide to give you another chance. I suspend your sentence of 1 year and 4 months for a period of 3 years.
  11. You must not commit another offence in the next 3 years. If you do, you may find yourself serving the 1 year and 4 month term I suspended today.

Result

  1. In the result, and for the reasons set above:
  2. 28 days to appeal.

......................................
Seini Puamau

Resident Magistrate


Dated at Labasa this 31st day of May 2019


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