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State v Uluiviti [2017] FJMC 27; Criminal Case 1806.2016 (24 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1806/2016

STATE

V

SESENIELI BUNA ULUIVITI

For the Prosecution : Cpl Shaw

For the Accused: Ms.Tuiloma(LAC)

Date of Sentence : 24^th of February 2017

SENTENCE

1. SESENIELI ULUVITI, you pleaded guilty in this court to one count of Theft contrary to section 291(1) of the Crimes Decree No 44 of 2009.
2. According to the admitted summary of facts on 23^rd October 2016 you stole 1xSamsung Galaxy S5 mobile phone valued at $1,699.00 from the complainant whilst she was waiting to cross the road.
3. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this offence.
4. Maximum penalty for Theft is 10 years 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. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.

7. Considering the nature of offending and your culpability, I select 05 months as the starting point in this case.
8. There are no aggravating factors and in her written mitigation your counsel submitted the following mitigating factors:
   1. 24 years old;
   2. First offender;
   100. Married with 2 children;
   4. Item recovered;
9. For these mitigating factors, I deduct 02 months to reach 03 months imprisonment.
10. Having got the proper legal advice you pleaded guilty early and for that I deduct 1/3 to reach 02 months imprisonment.
11. Now I have to consider whether to suspend your sentence.
12. Considering your young age, past good behavior and early guilty plea, I find this is a proper case to give a non-custodial sentence.
13. Accordingly I suspend your 02 months imprisonment to 01 year.
14. If you commit any offences during next 01 year you can be charge under section 28 of the Sentencing and Penalties Decree.
15. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate