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State v Verma [2016] FJMC 13; Criminal Case 174.2012 (8 February 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 174/2012

STATE

V

MELVIN AVIESH VERMA

For the Prosecution: PC Josuha
For the Accused: Mr.A.Paka
Date of Sentence:08th of February 2016

SENTENCE

1. MELVIN AVIESH VERMA,you wereconvicted after a trial to one count of Conspiracy contrary to section 49 of the Crimes Decree.
   
2. During the trial it was proved that on 27/01/2012 you conspired with one Navneeth Singh to steal items from MH Superfresh at Tamavua. You went with him to steal them and were waiting for him in your vehicle. But the theft was prevented because a security officer noticed your co-accused and alerted the police and the manager.
   
3. Section 49(1) of the Crimes Decree provides:
   

“A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.”

4. Maximum penalty for Theft is 10years imprisonment.
   
5. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where his Lordship Justice Madigan said:
   

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

6. Considering the gravity of offending in this case I select 06 months as the starting point for your sentence.
   
7. You were an employed as a sale assistant of the Supermarket and by engaging in this behavior has breached the trust. Further this was committed near to the midnight. For these aggravating factors I add 10 months to reach 16 months imprisonment.
   
8. The learned counsel has filed mitigation submission and highlighted that you are a young offender with unblemished character and sole bread winner of the family.
   
9. But I do not think past good behavior would be a factor to be considered in breach of trust offences. Even though the items were recovered also this happened due to the failure of the two accused to commit the theft. But for your young age and personal mitigating factors I deduct 04 months to reach 12 months imprisonment.
   
10. You are asking for non-custodial sentence because your co-accused was given a suspended sentence. But he pleaded guilty at the earliest opportunity. You denied the charge and found guilty after a hearing .Therefore you can't expect to have the same sentence that was given to the co-accused.
    
11. Your counsel has cited Navia v The State [2006] FJHC 6 and Prasad v State [1994] FJHC 132 where it was held that young first offenders need to be given a chance to reform. But when breach of trust is part of the offence I believe the court has to consider the public interest in addition to the interest of an accused.
    
12. In State v Raymond Roberts ( HAA0053 of 2003S), her Ladyship Juticae Shameem held that
    

"the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".

13. The above judicial pronouncement by Madam Shameem is relevant for this case. You did not plead guilty and was convicted only after a hearing. Even though the items recovered you had no part in that as the offence was prevented due to alertness of a security officer. Even the mitigation submission does not disclose remorse from your side.
    
14. Further in State v Prasad (2003) FJHC 320 his Lordship Justice Gates (as he then was) said: "The public interest lies in the deterrence of dishonest practice by employees. Usually in such cases the gravity of the breach of trust needs to be marked by an immediate term of imprisonment no matter how sad the accused's story or how compelling the mitigation in favor"(emphasis added) .
    
15. Therefore to denounce your behavior and to deter future offenders a custodial sentence is warranted in this case. But considering your young age I am prepared to partly suspend your sentence giving chance for reform also.
    
16. Accordingly I sentence you to 12 months imprisonment for the offence of Conspiracy contrary to section 49 of the Crimes Decree. From that you have to serve 06 months in correction center and the balance 06 months will be suspended for 03 years.
    
17. If you commit any offences during operational period of the suspend sentence you can be charge under section 28 of the Sentencing and Penalties Decree.
    
18. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate, Suva