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State v Nabaro [2019] FJMC 102; Criminal Case 212 of 2016 (22 July 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 212 - 2016
STATE
-v-
LUKE NABARO

Before : RM Fotofili L.

For Prosecution : WPC Chand A. [ Police Prosecution ]

Accused : Ms Henao G. [ Legal Aid Commission ]

Date of Sentence : 22^nd July 2019

SENTENCE

1. LUKE NABARO, 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

LUKE NABARO on the 6^th day of May, 2018 at Tavua in the Western Division dishonestly appropriated an orange purse valued at $15.00 and cash valued at $35.00 the property of BINA DEVI.

2. I am satisfied that your guilty plea is voluntary, it is supported by the evidence tendered in support of your guilty plea and your admission in court. I am also satisfied that you understand the consequence of your plea.
   
3. I convict you of the charge accordingly.
   
4. It was around 11.30am. The 49 year old female victim was at the bus stand in town helping her son load up for the son’s trip to Suva. You ran to the victim, grabbed her purse and ran away towards a school. You later fled to Suva. The purse is valued at $15 and there was $35 cash inside.
   
5. When arrested and interviewed by police later, you admitted that you were drinking liquor on that day. 6 cans. You did not have any fare. The purse caught your eye. You ran and grabbed the purse out of the victim’s hand. People shouted and you threw the purse under a bean cart and you ran away. You do not know what has happened to the purse. You did not take any money out. You say that you can pay back the victim.
   
6. There has been no recovery of the item.
   
7. On the day you pleaded guilty, you offered to pay $120 to the victim as compensation.
   
8. You were given over a month to bring this money to court. You were on bail.
   
9. When you reappeared a month later, you did not have the money with you and you said that you have used the money on your grandmother who needed to go to hospital.
   
10. The victim was present.
    
11. You were then told to bring $200 now, to compensate the victim.
    
12. Payment of compensation is not a guarantee that you will not be imprisoned. It will certainly be considered as part of your sentence.
    
13. When the matter was recalled to check whether you had the $200 with you, you failed to reappear in court.
    
14. A warrant was issued. You were arrested later. You still did not have any money. You said that you failed to re-appear as you were working as a volunteer for a government ministry. This explanation was unsatisfactory. You were remanded in custody pending your sentence.
    
15. You were supposed to be sentenced on the 25^th of June 2019 but due to an oversight which is not your fault, your sentence had to be deferred and you were further remanded.
    
16. I will only consider the time you have spent in remand since the 25^th of June 2019 as time served. This is equivalent to 27 days.
    
17. The other period spent in remand will not be considered as time served as you deserved to be remanded in custody as you cannot be trusted to reappear.
    
18. You paid $200 into court as compensation though and that was on the 25^th of June 2019.
    
19. You are a first offender.
    
20. You are 20 years old. Single. No children. Pleaded guilty early. Resides with your parents. Worked as a volunteer for a government ministry.
    

MAXIMUM SENTENCE

21. The maximum punishment for theft is up to 10 years imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

22. 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) anyequentquent 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.

23. I would classify your case as that of simple theft. It was not opportunistic such as finding the purse. You went out of your way to physically take it out of the possession of the victim.
    

STARTING POINT

24. Based on the objective seriousness of the case, I select a starting point of 4 months imprisonment.
    

AGGRAVATING FEATURES

25. This was brazen as it was around midday.
    
26. It was in public.
    
27. You must have caused great inconvenience to the victim.
    
28. You fled to Suva after the incident. I am sure that more resources were expanded by police to arrest you from there.
    
29. You were drinking but I am not sure that you were drunk so I will not use this as an aggravating feature.
    
30. For the other factors, I increase your sentence to 11 months imprisonment.
    

MITIGATION

31. I accept that you are remorseful.
    
32. You are young.
    
33. You are a first offender.
    
34. You have paid $200 to compensate the victim.
    
35. You cooperated with police during your interview.
    
36. Your sentence is reduced to 5 months imprisonment.
    

GUILTY EARLY

37. I accept that your guilty plea is early and I reduce your sentence to 3 months and 2 weeks imprisonment.
    

SUSPENDED SENTENCE & OBJECTIVE OF SENTENCING

38. 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.
    
39. Your sentence is aimed at deterrence and to punish you adequately.
    

FINAL SENTENCE

40. Your sentence is 3 months and 2 weeks imprisonment.
    
41. As I have explained earlier, I will only consider 27 days in remand as time served and I will deduct this from your sentence.
    
42. You therefore have a balance of 2 months and 20 days remaining.
    
43. I am inclined to suspend your sentence but only in part.
    
44. 1 month and 20 days imprisonment is suspended for the next 18 months. Do not commit any other offence punishable with imprisonment in the next 18 months. If you do, this 1 month and 20 days imprisonment term held in waiting may be activated.
    
45. You will serve 1 month imprisonment immediately.
    
46. Pursuant to section 153 ( 1 ) ( b ) of the Criminal Procedure Act 2009 and the Sentencing and Penalties Act 2009, I order the whole of the $200 paid by the defendant into court, be given to the victim. Prosecution is to advise the victim accordingly.
    
47. 28 days to appeal.
    

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

Dated at TAVUA this 22^nd day of July, 2019.