IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO. HAA001/2013

BETWEEN:

THE STATE
APPELLANT

AND:

1.	FILIPE RATUSUKA )
2.	FILIPO CABE )
3.	BENIAMINO RATUKOLI )
4.	IOWANE KALEVETI )
5.	ERONI MATAI ) RESPONDENTS
6.	IOSEFO ROKONA )
7.	VILIAME ADREA )
8.	MIKAELE RATUSILA )
9.	LOROSIO YAYA )

Counsel: S. Vodokisolomone for the State
P. Lomaloma for the Respondents

Date of Hearing: 25 February 2013
Date of Judgment: 7 March 2013

JUDGMENT

[1] On 21 November 2012, the respondents were jointly charged with theft of 5,000 oysters valued at $15,000 from the farm of their employer, J Hunter Pearls Fiji. The respondents were employed as divers. The theft was committed between 1 January 2012 and 31 May 2012. The oysters were sold to a farm in Rakiraki for $8,000.00. The respondents shared the money among themselves. After the respondents were caught and upon information provided to the police, 3000 oysters were seized from the Rakiraki farm and returned to the complainant.

[2] Upon arraignment in the Magistrates' Court at Savusavu, all nine respondents pleaded guilty to the charge, after waiving their right to counsel.

[3] All nine respondents were sentenced to a term of 8 months imprisonment. Being dissatisfied with the sentence, the State appeals against sentence on the ground the sentence is manifestly lenient having regards to all the circumstances of the case.

[4] At the time of offending, the respondents were aged between 28 to 42 years and married with children.

[5] Respondents 1 to 7 were first time offenders. Respondents 8 and 9 were serving 18 months and 2 years respectively for similar offences.

[6] Early guilty plea, remorse, recovering of 3,000 oysters, previous good character and personal circumstances were properly taken into account as mitigating factors. 

[7] The loss to a third party who had bought the oysters but had to return them upon revelation that the oysters were stolen and the breach of trust were properly taken into account as aggravating factors.

[8] The maximum penalty for theft is 10 years imprisonment. The learned Magistrate reminded himself of the guidelines set by Madigan J in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) at paragraph 13:

"From the cases then the following sentencing principles are established:

(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)	Planned thefts will attract greater sentences than opportunistic thefts.
 
[9] The first seven respondents' sentences were calculated as follows:

Starting point 12 months
Aggravating factors + 4 months
Guilty plea - 4 months
Mitigating factors and personal circumstances: - 4 months
Total 8 months 
 
[10] The 8th and 9th respondents' sentences were calculated as follows:

Starting point 14 months
Aggravating factors + 4 months
Guilty plea - 4 months
Mitigating factors and personal circumstances: - 4 months
Total: 18 months 

[11] Clearly, there is a mathematical error in the calculation of the sentences of the 8th and 9th respondents. The final term should have been 12 months and not 18 months. 

[12] After miscalculating the final term, the learned Magistrate further reduced the sentence by stating "[I] have decided to reduce your sentence concurrent to your current sentence." Effectively, the 8th and 9th respondents received no punishment for this theft.

[13] There are indeed errors in the approach used to arrive at the sentences in this case.

[14] The first error is that two different starting points were used to arrive at the final sentence. It was said by the Supreme Court in Vakalalabure v The State Criminal Appeal No. CAV003 of 2004S (15 June 2006) at paragraph 65:

"The proper practice in sentencing co-offenders is to adopt a common starting figure to reflect the objective gravity of the offence, and to adjust this for each offender by taking into account matters of aggravation and mitigation and any other subjective features".

[15] More recently, the Court of Appeal in Koroivuki v The State Criminal Appeal No.AAU0018 of 2010 (5 March 2013) said at paragraph 27:

"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 ether below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[16] In the present case, the learned Magistrate did not justify the use of the two different starting points. This was not a case of simple theft to attract a sentence within a range of 2 to 9 months imprisonment (Niudamu HAA28.2011). Nor was this a case of a systematic fraud by an employee to attract a range between 2-6 years (State v Prasad [2011] FJHC 214, CRC024.2010 (19 April 2011).

[17] The failure to correctly identify the category of theft was an error. This was a farm theft. 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).

[18] Pearl farming, of course, is not exactly the same as livestock or root crops farming. Pearl farming requires specialized knowledge and skills. It is a lucrative but a risky and costly business. Pearl farming is done is an open sea and therefore is exposed to potential thieves. Businesses who are involved in this trade should be protected from thefts because of the costs, risks and exposure that are involved in the pearl farming. 

[19] On an objective seriousness of the offence, a term of 2 years was an appropriate starting point for all the respondents. 

[20] The breach of trust and the financial loss caused to an innocent third party who bought the oysters but then had to return them after finding they were stolen, were the aggravating factors.

[21] The 8th and 9th respondents were serving sentences for a similar offence. But at the time they committed the theft in this case, they were persons with previous good character. All nine respondents, therefore, were entitled for the same discount for previous good character, early guilty plea, remorse, personal circumstances and recovery of 3,000 oysters. 

[22] A year should have been added to reflect the aggravating factors. Two years should have been deducted to reflect the compelling mitigating factors.

[23] A term of 12 months imprisonment was an appropriate sentence in all circumstances of this case. Suspension is not appropriate due to the seriousness of the offence.

[24] For the reasons given, the sentence of 8 months imprisonment is manifestly lenient.

[25] The sentence of 8 months imprisonment imposed on the respondents in the Magistrates' Court is quashed and substituted with a term of 12 months imprisonment from 27 November 2012. This sentence is made concurrent with any pre-existing sentence that any of the respondents were serving on 27 November 2012.

[26] The State's appeal against sentence is allowed.

Daniel Goundar
Judge

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
P. R. Lomaloma Esq, Labasa for the Respondents.