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State v Prasad [2012] FJMC 149; Criminal Case 1691.2011 (6 July 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No: 1691/11

STATE

V

SHAVNIL PRASAD

Prosecution: Cpl Reddy, Police Prosecutor.

Accused: Appeared in person.

SENTENCE

1. You, Shavnil Prasad is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 28.05.2012, for committing the offence of 'Theft' contrary to Section 291(1) of the Crimes Decree No 44 of2009.

2. Initially you were represented by a counsel of Legal Aid Commission.

3. As per Summary of Facts, you were employed by the complainant of this case. The complainant is the director of Footwear Manufacture Limited in Vatuwaqa.

4. On 05.07.2011, you have locked yourself in the bulk store of the factory while others reported off duty. However the complainant remained in the office till 8.30 pm. You came out after he left the work place. Then you stole one 29 inch Flat Screen TV, four Adidas flip flops, three sports shoes and some other footwear. Total value of the items was $ 1,150.

5. You came out using back door keys which were inside complainant's office. Then you managed to transport the stolen items to your residence at Nasinu.

6. The matter was reported to the police and you were arrested on the following day (6th). All items were recovered from your possession. Thus you admitted the offence in your caution interview statement.

7. The aforesaid Summary of Facts was admitted by you on your own free will.

8. The Court convicted you for the offence you were charged with.

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2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.

(i) According to Section 291 of the Crimes Decree 2009, the offence of 'Theft' attracts a Maximum Sentence of 10 years imprisonment.

(ii) The Tariff for the afore-stated offence 'Larceny' is between six (06) months to twelve months (12) imprisonment. (Kaloumaira v State, 2008 FJHC 63; Manasa Lesuma v State, 2004, FJHC 490)

(iii) In the case of Tikoitoga v State [2008] FJHC 44; HAM088.2007 (18 March 2008) the tariff was held to be 18 months to 3 years.

(iv) The tariff for 'simple larceny', with a previous conviction of a felony, was held to be over 9 months. (per Shameem J in Vaniqi v State [2008] FJHC 348; HAA080.2008 (12 December 2008)

(v) It was held in the case of State v Chaudary [2008] FJHC 22; HAC 69.2007, 70.2007 & 71.2007 (19 February 2008) that the tariff is be at least one year of imprisonment for a first offender of Larceny.

10. Accordingly in this case, 09 months imprisonment taken as the starting point for your sentence.

AGGRAVATING FACTORS

11. Following facts aggravate the degree of your offence.

• You were an employee of the place. You were aware of the valuables inside the premises. Breach of trust aggravates the offence.
  
• You remained four hours in a bulk store room until the complainant leave the place. Hence it is premeditated act.
  
• Value of the items $1,150.
  

12. Your sentence will be increased by six months to reflect above aggravating factors. Now your sentence is 15 months.

MITIGATING FACTORS

13. In mitigation, you stated to Court that you are 19 yrs old; single; unemployed; first offender; promised not to reoffend.

14. Recovery of stolen items is always not a ground for mitigation. There is a difference between an accused person who co-operated with the investigators to recover the stolen items and an accused person who did not have time to dispose the stolen items. First category offenders should get some deduction and leniency for their subsequent co-operation.

15. In this case I am of the view that you belong to the second category as it were recovered on the following day from your residence.

16. The Court observes that you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 5 months of your term of imprisonment which now stands to 10 months.

17. Further I reduce two months for your above personal circumstances and previous good character.

18. Therefore, your final term of imprisonment stands at 8 months.

19. The Court is mindful of the fact that a sentence below two (02) years could be suspended in terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009,

20. You are a young first offender. Section 15(3) of the Sentencing and Penalties Decree states that sentences of imprisonment should be regarded as the sanction of last resort.

21. On the other hand deterrence of offenders and other persons from committing similar offences is one of the main purposes of sentencing. The sentence should reflect that the Court and the law abiding community denounce such offenders even though they are first time offenders.

22. Act of you cannot simply classify under the heading of 'opportunistic crimes'. You have planned and executed this offence.

23. In view of the above findings, the Court does not see any compelling reason to suspend your total period of imprisonment. However this is a fit case for a partly suspended sentence under section 26(1) of the Sentencing and Penalties Decree 2009.

24. Accordingly, Shavnil Prasad today you are sentenced to 8 months imprisonment. Six months of the sentence is suspended for two years. You will serve two months in a prison with training facilities and counselling.

25. Once you released from the prison and if you commit any offence during the suspension period of 2 years and if found guilty by a Court of Law you are liable to be charged and prosecuted for an offence pursuant to section 28 of the Sentencing and Penalties Decree.

26. Stolen items should be released to the lawful owner.

27. Twenty eight (28) days to appeal.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

06^th July 2012