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State v Ketewai - Sentence [2018] FJMC 146; Criminal Case 315 of 2018 (18 December 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 315 - 2018
STATE
-v-
MIKAELE KETEWAI

For Prosecution: WPC Chand [ Police Prosecution ]

Accused : In person, waived right to counsel [ Legal Aid Commission]

Date of Sentence: 18^th day of December, 2018

SENTENCE

1. MIKAELE KETEWAI, you have pleaded guilty to the following charge:
   

Statement of Offence

THEFT: Contrary to section 291 (1) of the Crimes Act of 2009.

Particulars of Offence

MIKAELE KETEWAI on the 07^th of November, 2018 at Shop n Save Carpark, Tavua Town, Tavua in the Western Division, dishonestly appropriated a $100 cash, and a Huawei pocket wifi valued at $150.00 all to the total value of $250.00, the property of RUSIATE JALE FAIVAKIBAU, with the intention of permanently depriving the said RUSIATE JALE FAIVAKIBAU.

2. You have pleaded guilty to the charge and I am satisfied that your guilty plea is voluntary and that you understand the consequences of your plea.
   
3. I have found you guilty accordingly.
   
4. The victim had parked his car at a shopping centre car park. The victim had the windows to his vehicle up but he didn’t lock his vehicle. After shopping the victim then drove his vehicle and on the way, he realized that a $100 note was missing and his Huawei pocket wifi. A few days later the victim returned to the shopping centre and viewed the video footage and then reported the matter to police.
   
5. When police viewed the video footage, they identified you and you were later arrested and interviewed.
   
6. The pocket wifi has been recovered from your house.
   
7. In your interview with the police, you said that you were working at the Supermarket unloading goods into the bulk store room. You changed your version when police confronted you that that was not the case. You admitted that you were near the car park and saw the victim park his vehicle there without locking the door. You opened a door of the vehicle and you took the wifi and the $100 near the gear of the vehicle. You kept the wifi in your drawer at home. You said that you have lost that $100. You showed police where the vehicle was parked during a scene reconstruction.
   
8. You were produced under police custody on the 20^th of November, 2018.
   
9. You have been remanded since then.
   
10. It must be understood that you were granted bail for another of your case of burglary and theft Tavua CF 315 – 18 on the 1^st of October 2018.
    
11. Whilst on bail in that case, you committed this offence of theft. It was just a little over a month after you were out on bail.
    
12. I will not consider the time you have spent in custody as time spent. Being in remand is of your own making and the community needs to be protected.
    
13. You have no previous conviction.
    
14. In your mitigation, you say that you are 18 years old. You promise that you will not reoffend. You intend to go to school next year studying civil engineering. You don’t like prison. You accept responsibility. You cooperated with police. You seek leniency and a non-custodial sentence. You want to help your parents.
    

MAXIMUM SENTENCE

15. The maximum punishment for theft is 10 years imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

16. The sentencing tariff for theft is as follows [ Ratusili v State [2012] FJHC 1249; HAA011.2012 ( 1 August 2012 ) ] :
    

(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.

STARTING POINT

17. Based on the circumstance of your case, I select a starting point of 3 months imprisonment.
    

AGGRAVATING FEATURES

18. This was done in a public place at a popular supermarket, in broad daylight.
    
19. You were supposed to be observing bail conditions at the time and to behave. You wilfully breached that.
    
20. Your sentence is increased to 7 months imprisonment.
    

MITIGATION

21. I didn’t find your plea in mitigation compelling that you for example want to look after your parents.
    
22. Your family will not be used as a tool when it is convenient to you.
    
23. You cooperated with police though.
    
24. You have no prior conviction.
    
25. You are young.
    
26. Your sentence is reduced to 4 months imprisonment.
    

GUILTY EARLY

27. I accept that your guilty plea is early and I reduce your sentence to 2 months and 2 weeks imprisonment.
    

FINAL SENTENCE

28. Your sentence is 2 months and 2 weeks imprisonment.
    
29. I will not consider the time you have spent in remand as time served for the reasons I have explained earlier.
    
30. I can suspend your sentence whether in whole or in part pursuant to section 26 ( 1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009 as long as your sentence is below 2 years imprisonment.
    
31. I am not persuaded to suspend your sentence in whole or in part.
    
32. Your sentence will be aimed at deterrence and to punish you adequately.
    
33. You will serve your 2 months and 2 weeks imprisonment term immediately.
    
34. I don’t think that ordering a consecutive sentence will infringe the totality principle or will make you serve an excessive sentence.
    
35. Your 2 months and 2 weeks imprisonment term in this case will be served consecutive to the sentence imposed on you earlier today in your aggravated burglary and theft case Tavua CF 252 – 18.
    
36. 28 days to appeal.
    

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at Tavua this 18^th day of December, 2018.