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State v Waqa [2012] FJMC 145; Criminal Case 579.2012 (2 July 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO: 579/12

THE STATE

V

JONA WAQA

Sgt Naidu for prosecution

Accused in person

Date of Sentence: 02.07. 2012.

SENTENCE

1. You, JONA WAQA, are charged with two counts of Theft contrary to section 291 [1] of the Crimes Decree No.44 of 2009.

2. You had pleaded guilty to the charges and admitted summary of facts submitted by the prosecution. I have reviewed the facts against the particulars of the charges laid in the information by the prosecution against you, and I am satisfied that they support the essential ingredients of the charges. I therefore convict you as charged on both counts.

3. The outline of facts admitted by you confirms that between 15-17 June 2012 you stole 2 x bottles of rum all to the total value of $47.34 from the liquor department at M H Namaka Branch.

4. On these days, you travel from Lautoka to M H Namaka and stole therein the above items. You stole one bottle on 15 June 2012 and the other bottle on the 17 June 2012. This was recovered by the camera footage at the shop. None of the items was recovered.

5. Preplanning, use of stolen property, loss you cause to the complainant and committing offence during operational period of suspended sentence aggravated the offending.

6. You referred me to your family background in your mitigation. Also stated that you are willing to pay for the stolen items. You seek apology of the court and the complainant.

7. You admitted 19 previous convictions from 1987 till 4 July 2011. However, I disregard the convictions that are 10 years old. Still, you have 5 live convictions which include two convictions for similar offences. Your last conviction dates 4 July 2011 where you were sentenced to 10 months imprisonment suspended for 2 years.

8. I cannot take your previous convictions as aggravating factor, but your convictions may be relevant to increase the starting point.

9. The offence of theft carries a maximum penalty of 10 years imprisonment pursuant to section 291 of the Crimes Decree.

10. The offence of 'Theft' under Crimes Decree 2009 is similar to offence of 'Larceny' under sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.

1. The Tariff for the offence 'Larceny' is between 06 months to 12months imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490).
   
2. In the case of Tikoitoga v State [2008] FJHC44; HAM088. 2007 (18 March 2008) the tariff was held to be 18 months to 3 years.
   
3. It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) the tariff is be at least one year of imprisonment for a first offender of Larceny.
   

11. In your case for each count of theft I take 2 years imprisonment as my starting point. I add 6 months to reflect the above aggravating features. You pleaded guilty to the charges in first available instance hence you are entitled to full 1/3 discount for your guilty plea. Hence for you early guilty plea I deduct 10 months. You are not entitled to any credit for your previous good character but I deduct 2 months for your mitigation. Therefore, for each count of theft you are to serve 18 months imprisonment. You must serve these sentences concurrently with each other in view of totality principle. Hence, in total you are to serve 18 months imprisonment.

12. You had admitted 19 previous convictions. Yet you are to learn your lessons. The sentence must serve as deterrent not only to you but also to others minded like you. You are not eligible for a suspended sentence. In your case the suspended sentence will not serve the purpose.

13. I am mindful of the fact that in terms of section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case I fix 6 month as non-parole period. That means you are not entitled to parole before six (6) months.

14. Twenty eight (28) days to appeal.

ORDER

15. I make the following order:

(a) You are hereby sentenced to 18 months imprisonment with a non-parole period of six (6) months.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 2nd day of July 2012.