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State v Sukhu [2012] FJMC 362; CF542.12 (10 September 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No. 542/2012

THE STATE

–v-

ASHWIN AVIKASH PRASAD SUKHU

For the State: WPC Fisher
For the Accused: Ms Jiuta (LAC)

SENTENCE

1. Charge
   

ASHWIN AVIKASH PRASAD SUKHU, you are charged with the offence of Theft: contrary to section 291 (1) of the Crimes Decree No.44 of 2009 and particulars of offence states as follows;

On the 10th day of April, 2012, at 37 Volavola Road, Tamavua in the Central Division, dishonestly appropriated (stole) 2 x [600mm x 120cm] Brass Metal Sheets valued at $3,000.00, the property of ADRIAN MICHEAL.

2. You are convicted of the charge on your own plea of guilty.
   
3. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;
   

“On 10th day of April, 2012 at about 10.00am at 37 Volavola Road, Tamavua, ADRIAN MICHAEL [PW-1] 28 years, businessman received an information that one of this employees ASHWIN AVIKASH PRASAD SUKHU [Accused] 36 years, of 35 Volavola Road was seen carrying some brass metal sheets from [PW-1]’s residence and loaded them into a taxi. [PW-1] approached the [Accused] and verbally asked him about the theft of the brass metal sheets and the [Accused] admitted that he had stolen 2 x brass metal sheets valued at $3,000.00 and sold them. [PW-1] reported the matter to police and the [Accused] was arrested and escorted to Samabula Police Station. The [Accused] was interviewed under caution whereby he admitted to allegations put to him. The [Accused] stated that he had sold 2 x brass metal sheets at the Asia Pacific Scrap Metal Yard along Reservoir Road. [Please refer to Q & A 30-33]. A search was conducted at the Scrap Metal Company but the [Accused] could not identify to whom he had sold the 2 x brass metal sheets to. Their records were checked but there was no such transactions made.

4. Aggravating Factors
   

According to the information revealed by the Summary of Facts placed before Court, this is an act of theft and this is an act of opportunity and dishonesty.

5. Mitigating Factors:
   

I consider following mitigating factors which were brought before me by your Counsel on your behalf seeking a non conviction to be entered. That you are;

❖ 36 years of age and single
❖ Residing at Lot 35 Volavola Road, Tamavua
❖ Do private contracts and earns approximately $80 per week.
❖ A sole-breadwinner, and supports your fiancé.
❖ Remorseful for what has been done and seeks the courts forgiveness
❖ A first offender
❖ Have shown remorse for your actions and regrets what you did.
❖ Apologising to the Court for your actions and promises that you will not re-offend again or appear in court charged for an offence.
❖ You had sought for the complainant’s forgiveness.
❖ Have pleaded guilty to the charge at the earliest possible instance and in doing so you have saved the Prosecution and the Court’s time and expenses from a full hearing.
❖ Have fully cooperated with the police; was being truthful and honest and you told the police everything of what happened on the day of the commission of the offending.
❖ Willing to compensate the $3000.00 that you stole but to pay in instalments.

6. Law
   

According to section 291 (1) of the Crimes Decree No.44 of 2009; A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the property.

The offence of theft carries a maximum sentence of 10 years imprisonment.

Tariff

Tariff for the offence of theft was discussed in al casl cases. It was held in Tikoitoga v State (2008, FJHC 44, HAM 088 2007) The Tariff for larceny is 18 months to 2 years. Learned Judge Daniel Gounder held in State v Vlaba (2010, FJHC 99HC 99; HAC 134.2008) that the tariff for theft offences arising from breach of trust range from 18 months to 3 years imprisonment. Suspended sentences are reserved for cases where the offenders have shown remorse or the value of the property is small. In Waisale Vakarauvanua v State (2002) FJHC 116; HAA 51J.2004S the Court accepted between 2 to 9 months as tariff for simple theft and in in State vs Chaudhry HAC 69 of 2007 as 2 to 12 months imprisonment.

In the case of Niudamu HAA28.2011the Justice Paul K. Madigan held that the tariff for theft;by a first offender sher should be between two to nine months.

Shameem J. in Jone Saukilagi HAC21. 2004 are most helpful. Her Ladyship said this:

"the tariff for simple larceny on a first conviction is from two to nine months and on a second conviction a sentence in excess of nine months. In cases of larceny of large amounts of money sentences of 18 months to three years have been upheld by the High Court. (Sevanaia Via Koroi HAA31.2001). Much depends on the value of the money stolen and the nature of the victim and defendant. The method of stealing is also relevant."

7. Sentence
   

In sentencing you the Court acknowledges the factors:

1. Pleaded Guilty at the first available opportunity to save the Court's time and Prosecution's time in calling witnesses for a full trial.
2. Previous good character.
3. Remorseful
   

In Sentencing the Accused, I note that the stolen 2 x [600mm x 120cm] Brass Metal Sheets valued at $3,000.00 not recovered and willing to compensate the $3000.00 that you stole but to pay in instalments.
Now, I do consider whether your "intention" of restitution can consider as a mitigating factor in your favour. Your mitigation submission states you are willing to fully compensate the complainant. I note that the said offence committed in April 2012 but until to date you did not take any measures to restitution the complainant apart from expressing your intention to reinstitute. However, Restitution can be considered if it is made as a measure of true remorse, but not to buy the offender's way out of prison. (The State v Simeti Cakau HAA 125 of 2004S, Shameem J). In this case the mere intention to pay the amount obtained by an accused cannot be considered as remorse. Hussein v State [2012] FJHC 1085; HAA006.2012 (16 May 2012, Fernando J)

In sentencing you I note that there are no special aggravating factors as your actions constitute the elements of the offence. But lack of restitution can be considered as an aggravating factor. [Thoman v State [2011] FJHC471;HAA022.2011(17 August 2011).

Upon considering the general principle of sentencing and objectives of sentencing under Section 15 (3), 4 (1) and 4 (2) of the Sentencing and Penalties Decree 2009, I now consider appropriate sentences on you.

The intention of sentencing you for the offence of theft in pursuant of section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, more importantly to signify that the court and the community denounce the commission of such offences.

Upon considering above mentioned legal precedents on Tariff for the offence of Theft, I select 18 months as a starting point for your sentence.

In considering your early guilty plea in the first available opportunity I reduce 06 months In view of aforementioned aggravating factor I increase 03 months, to reach the period of 15 months and I further reduce 03 months for the mitigating factors. For your previous good character I furthermore reduce 04 months to reach the period of 08 months.

Accordingly, I sentence you 08 months imprisonment period for the offence of theft contrary to section 291(1) of Crime Decree No 44 of 2009.

I note that you are a first offender and I am of the view of that you should not be sentence to imprisonment and given an opportunity to reform. Therefore the imprisonment period and suspend it for 03 years.

If you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.

In addition I order that the, recovered item which is in police custody is to be returned to the owner.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

On this 10th day of September 2012.