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State v Rarokoliwa [2012] FJMC 175; Criminal Case 344.2012 (26 July 2012)

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

Criminal Case No: 344/12

STATE

V

JONE ROKOWAWAVANUA RAROKOLIWA

Prosecution: Cpl Reddy, Police Prosecutor.

First Accused: Mr. Bukarau T. [Messrs Muskits Law]

SENTENCE

1. You, Jone Rokowawavanua Rarokoliwa is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 20.04.2012, for committing the offence of 'Theft' contrary to Section 291(1) of the Crimes Decree No 44 of2009.
   
2. You were represented by your counsel.
   
3. Bank of South Pacific (BSP) mistakenly credited your bank account on 03.02.2011 with $ 11,000. Five days later without knowing this you withdrew $ 20 from an automatic teller machine in Nasori. Upon receiving the receipt for the transaction you found that your balance is $ 11,0005.
   
4. You did not make any effort to verify this unknown income. But you went on with withdrawals. The bank informed you that this money was credited due to a wrong posting from their part. They have asked you to visit them which you acknowledged. But you failed to pay the money back. After several failed attempts the Head of Operations of the BSP reported you to the police.
   
5. You were arrested by the police and interviewed under caution. You admitted the liability and stated that you used the money for personal expenses. Later they charged you with a count of Theft.
   
6. The aforesaid Summary of Facts was admitted by you on your own free will.
   
7. The Court was informed that you worked as a school teacher under the Ministry of Education and currently under suspension. A conviction of this Court would undoubtedly effect your employment. Section 16(1) of the Sentencing and Penalties Decree 2009 provides provisions to enter a non conviction on an accused person. Section 16(1)(a) compels the Court to consider the 'Nature of the offence' with other surrounding circumstances.
   
8. This is not a theft that was carried out in the street or any personal compound. From the very outset you had the benefit of committing this offence within a small space of an ATM. It is even different from finding a wallet on a street with few hundred dollars. One cannot simply explain that this money was used because there was no owner.
   
9. You stated in your mitigation submission that you were expecting a 'Bula Scholar Policy' refund of $10,000-$11,000. This Court is reluctant to accept your submission without any considerable proof. It was not even mentioned in the letter dated 14. 05.2012 that was sent by the bank.
   
10. You are a 50 year old head master of a school. It is not unfair to distinguish you from a young layman in the society. Any prudent individual of the community will think twice as to how he got this much of money before taking it to personal use.
    
11. The fact that you dispense the said responsibility exposes your intentions to permanently deprive the owner from using that money. For the aforesaid reasons I consider this as an offence of serious nature.
    
12. Thus there is no valid reason for the Court to act under section 16(1) of the Sentencing and Penalties Decree 2009.
    
13. I convict you for the offence that you were charged with.
    
14. 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.

(vi) The tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment( State v Vatunalaba [2010] FJHC 99; HAC 143.2008S 31 March 2010)

15. Accordingly, in this case, I select 18 months imprisonment as the starting point for your sentence.
    

AGGRAVATING FACTORS

16. Followings are the aggravating factors of this case,
    
    1. The amount involved was $ 11,000,
       
    2. It was withdrawn on several occasions (the act committed during a period of time).
       
17. In view of the above, I increase your sentence by another 6 months, and the period of imprisonment is now 24 months.
    

MITIGATING FACTORS

18. In mitigation, you stated to Court that you are 50 yrs old; first offender; remorseful for the incident; expressed willingness for restitution.
    
19. I observe that you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 08 months of your term of imprisonment which now stands to 16 months. (Akili Vilimone v State, Cr. App. HAA 131/2007)
    
20. As a first offender you are entitled to the credit that is given to an offender with previous good character. I further deduct 3 months of your sentence. This will leave your term at 13 months.
    
21. You were held 10 days in custody before this Court considered bail pending trial. Pursuant to section 24 of the Sentencing and Penalties Decree I reduce that 10 days from your final term. Hence your final term is 12 months and 20 days imprisonment.
    
22. I am mindful of the fact that a sentence below two (02) years can be suspended in terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009. For the reasons set out in paragraph 10 and 11 the Court is not inclined to impose a suspension on the total term of imprisonment.
    
23. However Section 26(1) of the Act facilitates to partly suspend any sentence of the Court which is imposed under section 26(2). Having considered the fact that you are a first offender I decide to partly suspend your sentence.
    
24. Accordingly I sentence you for 12 months and 20 days imprisonment for the offence you committed. You will now proceed to serve 6 months and 20 days of your sentence in Suva prison. The balance 6 months is suspended for two years.
    
25. If you commit any other offence during the operational period of the suspended sentence, you will be prosecuted for a fresh charge in addition to the subsequent offence as per section 28(1) of the Sentencing and Penalties Decree 2009.
    
26. You have Twenty eight (28) days to appeal against this order.
    

Pronounced in open court,

Yohan Liyanage
Resident Magistrate

26th July 2012