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State v Saini [2012] FJMC 89; Criminal Case 63.12 (10 May 2012)

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

Criminal Case No: 63/12

STATE

V

RUSIATE SAINI

Prosecution : Cpl Reddy, Police Prosecutor.
Accused : Appeared in person.

SENTENCE

1. You, Rusiate Saini is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 26.04.2012, for committing the offence of 'Theft' contrary to Section 291(1) of the Crimes Decree No 44 of2009.
   
2. You elected to represent yourself.
   
3. According to the Summary of Facts tendered by the Prosecution, on 26.11.2011, around 10.00 am Ms Fauzia Ali (Cashier of New World Supermarket in Suva) has found that $200 has gone missing from her counter drawer. This had happened when she was enaged with the manager to obtain a discount for a customer. Later the CCTV camera recordings of the premises helped PW 3 who was a security guard to identify you.
   
4. You were arrested by Totoga police station and you admitted the offence in your caution interview given to the police.
   
5. The aforesaid Summary of Facts was admitted by you on your own free will.
   
6. The Court convicted you for the offence you were charged with.
   
7. 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2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.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.

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

AGGRAVATING FACTORS

9. According to the Summary of Facts, you had committed this offence under the guise of shopping at complainant's Super market.
   
10. You took the advantage from the busyness of the cashier to commit the offence.
    
11. Your sentence is increased by 9 months for the said aggravating factors. Now your sentence stands at 18 months.
    

MITIGATING FACTORS

12. In mitigation, you stated to Court that you are 46 yrs old; married with two children; Sole breadwinner; wife is suffering from a stroke; promised not to reoffend.
    
13. The Court observes that you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 6 months of your term of imprisonment which now stands to 12 months.
    
14. You are not a first offender and hence you are not entitled to the credit that is given to an offender with previous good character.
    
15. Therefore, your final term of imprisonment stands at 12 months.
    
16. 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,
    
17. You have 50 previous convictions against your name. The Court will only consider the convictions within 10 years period as current PCs. You were convicted twice during the past 10 years for the same offence. Further it appears that you have committed this offence during an operational period of a suspended sentence. In view of the above findings, the Court does not see any compelling reason to suspend your sentence.
    
18. Accordingly you, Rusiate Saini sentenced to 12 months imprisonment.
    
19. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

10th May 2012