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State v Tuwai [2013] FJMC 204; Criminal Case 53.13 (15 May 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 53/13

BETWEEN:

THE STATE

AND:

ALIPATE TUWAI

Prosecution: Inspector Nadolo
Accused: In Person

SENTENCE

1. Alipate Tuwai you pleaded guilty to theft contrary to section 291(1) of the Crimes Decree No. 44 of 2009.
   
2. You pleaded guilty voluntarily to the charge when it was read and explained. You also accepted the facts.
   
3. The Court is satisfied that your guilty plea is unequivocal and you are convicted as charged.
   
4. Between 24/1/13 at 6pm and 12/2/13 at 1.30pm at Wairuku Ra you stole a tan colored cow valued $750.00 and a tan colored calf valued $300.00 belonging to the complainant Kasiano Nalotawa (38yrs farmer of Wairuku Ra). The said cow and calf was kept at one Josua Tuwer's place for safe keeping when you stole it from there. You then made arrangements with another person to buy the animals when in the process you were reported to police.
   

After being arrested you then cautioned interviewed and charged accordingly for the alleged offence.

Both cow and calf have been recovered.

5. You mitigated and I take the following in your favour:
   
   • Guilty plea.
   • First offender
   • Remorseful and promised not to re-offend.
   • Time in custody (approximately 3 months)
     
6. The following features I would regard as aggravating:
   
   • Prevalence of offence in community.
     
7. Theft under the Crimes Decree carries a maximum imprisonment term of 10 years.

The guideline in case authorities suggest that tariff for theft ranges from 2-9 months for 1st convictions and between 9 – 24 months for 2nd convictions depending on the value of the goods and circumstances of the stealing. (see: State v Saukilagi [2005] FJHC 13; Ronald Vikash Singh v State HAA 035 of 2002)

8. The offending in this case cannot be regarded as a simple theft matter. The courts have always viewed livestock and crop or farm theft as serious because of the public interest factor involved. Most farmers rely on livestock and crops to support and improve their livelihood. Thus the court will not deal leniently with those engaging in livestock, crop or farm theft.
   
9. His Lordship Judge Goundar stated in the recent Labasa case of State v Filipe Ratusuka & 8 Others Criminal Appeal No. HAA001/2013, at paragraph 17 "Farm theft is considered a serious offence because of the value that the commodities bring to the farmer and the community. For this reason, theft of cattle, goats, livestock and root crops from farming community is usually punished by custodial sentences to deter the offenders and others from engaging in this type of conduct in the future (Sateo Tuta v State [2002] HAA 5/02B, Abdul Afiz v State [1990] HAA 0011 & 12/89S, Jone Naca v State HAA016/-02S, Penisoni Waqa v State [2004] HAA 101/04L)."
   
10. In considering the circumstances of the offending in this case I take a starting point of 18 months.
    
11. For the aggravating factors I increase your sentence by 1 month. Your sentence is now 19 months imprisonment.
    
12. For your guilty plea I reduce your sentence by 5 months imprisonment. This being your first offence and other mitigating circumstances I further reduce your sentence by 4 months. Your sentence is now 10 months imprisonment.
    
13. I now consider whether to suspend your sentence. You've a first offender, remorseful and apologized for committing the offence. However a strong deterrence is imminent in the public interest and there are no compelling factors to wholly suspend the sentence. In the courts opinion a part imprisonment and part suspended term would be appropriate for your rehabilitation.
    
14. I therefore order that you serve an immediate imprisonment of 5 months. The remainder of 5 months will be suspended for 2 years.
    
15. If you commit any offence within the operational period of 2 years you'll be further charged for breaching this suspension order and if convicted you'll be made to serve the 5 months with any penalty imposed in that other offence.
    
16. This sentence should send out a clear warning to others in community who may have similar impulses.
    
17. Both cow and calf are to be returned to the lawful owner forthwith.
    
18. 28 days to appeal.
    

__________________________________
Samuela Qica
Resident Magistrate

15th May 2013