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State v Cakacaka [2012] FJMC 92; Criminal Case 1823.11 (14 May 2012)

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

Criminal Case No: 1823/11

STATE

V

RUSIATE CAKACAKA

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

SENTENCE

1. You, Rusiate Cakacaka is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court, 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. At the inception you entered a plea of 'Not Guilty'. But today you informed Court on your willingness to change the plea. You answered negative to my specific questions that there was any threat, promise or force by anyone to change the plea.
   
4. According to the Summary of Facts tendered by the Prosecution, on 30.11.2011, around 2.45 pm Ms Praveen Sharma (an Accounts clerk) has stopped her car at the crossing lights at the Renwick road junction in Suva city.
   
5. At this time a she was disturbed by a person who wanted to sell watches and rings to her. You took the advantage from this instance to take her wallet from the front passenger seat. Among the other items $ 95 was inside the wallet.
   
6. Your act was witnessed by a Parking meter attendant (PW2). He followed you up to the market but did not find a police officer to report you. But however you were identified by the complainant and later police arrested you.
   
7. You admitted the offence in your caution interview given to the police. The wallet, FNPF card, driver's licence and a bank card had been recovered as a result of a search carried out by the police.
   
8. The aforesaid Summary of Facts was admitted by you on your own free will.
   
9. The Court convicted you for the offence you were charged with.
   
10. 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2009 is similar to the offence of 'Larceny' under Sections 259 and 262 of the Penal Code Act, Chap 17, which is now repealed.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.

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

AGGRAVATING FACTORS

12. You had committed this offence at a public road in the city during broad day light.
    
13. You took the advantage from the distracted surroundings of the complainant to commit the offence.
    
14. Your sentence is increased by 9 months for the said aggravating factors. Now your sentence stands at 18 months.
    

MITIGATING FACTORS

15. In mitigation, you stated to Court that you are 24 yrs old; married with three children; Sole breadwinner; promised not to reoffend.
    
16. 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.
    
17. 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.
    
18. As per section 24 of the Sentencing and Penalties Decree 1 ½ months is deducted for the period held in custody prior to this sentence.
    
19. Therefore, your final term of imprisonment stands at 10 1/2 months.
    
20. 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.
    
21. You have 12 previous convictions against your name. You were previously convicted on eight occasions for the similar offences.
    
22. One could submit that you only took $ 95 in cash hence you should entitle for a non custodial sentence. The complainant of this case was fortunate. She had only $ 95. But the circumstances of this case should be discouraged by imposing this sentence.
    
23. The general public on the streets must be safe from the opportunistic criminals. In view of the above findings, the Court does not see any compelling reason to suspend your sentence.
    
24. Accordingly you, Rusiate Cakacaka sentenced to 10 1/2 months imprisonment.
    
25. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

14th May 2012