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State v Iloilovatu [2012] FJMC 63; Criminal Case 61.2012 (24 April 2012)

IN THE MAGISTRATE'S COURT AT TAVEUNI

Criminal Case No: 61 of 2012

STATE

V

LUI ILOILOVATU

Detective Constable Mr. Farman appeared for the prosecution.
The accused appeared in person.

SENTENCE

1. You, Lui Iloilovatu, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

Theft: Contrary to the section 291(1) of the Crimes Decree No.44 of 2009

Your rights were explained and you chose to defend yourself. Then your charge was read over and explained to you. You said you understood it. You pleaded guilty to the charge. I am satisfied that your plea is unequivocal and that you understand the repercussion of your plea. I convict you as charged.

2. According to the facts, (which you have admitted), you stole 18 pieces of sea cucumbers valued $1050 the property of Mohammed Sharif. On 17th March 2012 around 6pm to 7pm you entered the property of the victim and stole sea cucumbers. Then you went with Taxi driver Beniamino to sell these. Beni, Taxi Driver handed over you to Ashnil and Avinesh. Upon reaching Navakacoa you sold sea cucumbers to Martin and received $1050. The victim lodged the complaint on 18th March 2012 and upon investigation you were arrested and caution interviewed. You admitted the offence.

3. Maximum penalty could be imposed for Theft is 10 years.

4. In Tomasi Turuturuvesi v State[2002] HAA 86/02S 23 December 2002, Shameem J held that tariff for house breaking entering and larceny is between 18 months to 3 years imprisonment, the question of suspension being revered for young first offender. In William Prasad V State [2010] AAM 1/10 Ruling 12 February 2010 Byrne AP held that the tariff for simple larceny on first conviction is 2-9 months; on a second conviction, sentence in excess of 9 months and in cases of a large amount of money, 1 ½ years to 3 years. It was further held that "No error here in 1 year sentence for stealing van's stereo and amplifier worth $ 1799, later recovered from a pawn shop".
5. There are no aggravating factors in this case.

6. You have no previous convictions.

7. Considering value of property, I select 1 year imprisonment as the starting point of this case.

8. In mitigation, you said that you are 18 years old, single. You asked court's forgiveness leniency. And further you promised not to re offend.

9. You pleaded guilty to the charge at the first instance and saved court's resources. Therefore, you are entitled for reduction of your sentence. I am giving the benefit of ⅓ as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007. Now your sentence is 9 months imprisonment.

10. For you mitigating factors I reduce another 3 months and your actual sentence is now 6 months imprisonment. Should I suspend this sentence? 7.

11. I note you are a first offender. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;"In sentencing offenders a court must have regard to

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

12. I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

Now, I turn to the Case law in this regard.

13. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders&#16ht to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences. (Emphasize is mine)

14. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

15. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the lesort especially where a first oer is conceronceroncerned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphasize is mine).