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State v Bulivou - Sentence [2018] FJMC 96; Criminal Case 30 of 2016 (23 October 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 30/2016

STATE

V

LUSE BULIVOU

Counsel: Mr.Taitusi Tuenuku (ODPP) for the Prosecution

Ms.Neha Singh (LAC) for the Accused

Date of Judgment: 19th of October 2018

Date of Sentence: 23^rd of October 2018

SENTENCE

1. LUSE BULIVOU, you were convicted after a hearing to one count of Theft contrary to section 291(1) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. During the hearing the following facts were proved by the prosecution.
3. You were working as a special corporal in Fiji police force and on 12^th September 2015 after finishing work came to the Nausori town with your daughter for shopping. Whilst she was waiting in another place you came to the Radhe Krihna jewelry shop and informed the sales assistant that you wanted to buy a chain. Whilst she was showing some gold chains, you managed to steal one from there and put it to your bag. But this was recorded in the CCTV in the shop and confronted with that you returned the chain back to the complainant stating that it was a mistake from your part.
4. Maximum penalty for Theft under the Crimes Act 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 LaisiasaKoroivuki 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 objective seriousness of the offence, I select 06 months as the starting point for your sentence.
8. I do not find any aggravating factors in this case and in mitigation your counsel submitted that you are 44 years old and married, has 3 children attending school, supporting your brother and mother. It appears that you no longer employed by the Fiji police force and presently working in the Ministry of Health.
9. The prosecution informed after the pronouncement of your judgment that you are a first offender. But being in the Fiji police force you were supposed to maintain a good character. Accordingly I find your past good behavior at the time of offending has less weight as a mitigating factor for this sentence.
10. For your personal mitigating factors submitted by your counsel I deduct 02 months from your interim sentence to reach 04 months imprisonment.
11. Now I would consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
12. The vast majority of officers in Fiji Police Force serve the public with honor and distinction. But there are very few people like the accused in this case who unfortunately tarnish the badge of the committed men and women of law enforcement. Hence it is the duty of the court to punish these individuals with severe and penalties for their deplorable actions and to protect the integrity of the law enforcement officers. Based on these reasons I find a custodial sentence is warranted in this case.
13. LUSE BULIVOU, accordingly you are sentenced to 04 months imprisonment for this charge.
14. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate