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State v Lal [2024] FJMC 24; Criminal Case 410 of 2021 (8 May 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 410/2021

BETWEEN: STATE

PROSECUTION

AND: LAVIN YOGESH LAL

ACCUSED

Counsel: Sergeant 4971 Veni Vunaki for Police Prosecution
Accused in person

Date of Sentence: 8 May 2024

SENTENCE

Introduction

1. Mr. Lavin Yogesh Lal, you have been charged with the following offence:
   

Statement of Offence

Theft: Contrary to Section 291(1) of the Crimes Act No. 44 of 2009.

Particulars of Offence

Aiyaz Ali Dean and Lavin Yogesh Lal between 8^th day of January, 2021 to 9^th day of January 2021 at Ba Town in the Western Division dishonestly appropriated 1 x Yamaha Outboard Boat Engine valued at $10,000.00 the property of Roneel Chand with the intent to permanently deprive the said Roneel Chand of his property.

2. You pleaded Not Guilty on 26 January 2022 whereas Mr. Dean, your co-Accused in this matter pleaded Guilty on 8 April 2022 and was subsequently sentenced to 11 months and 23 days imprisonment on 11 April 2022.
   
3. Your Trial was set for 3 April 2023 and proceeded on the same date with you in attendance. Prosecution called 6 witnesses and thereafter 21 days was given to Prosecution to file legal submissions on whether there was a case to answer against the Accused. On 27 April 2023, when the matter was called to check on Prosecution’s submissions, further 7 days was granted to Prosecution to file legal submissions with a Ruling date of 4 July 2023 for the No Case to Answer Ruling.
   
4. On 4 July 2023 the Court pronounced its No Case to Answer Ruling wherein it found that there was a case to answer with the matter being adjourned to 30 August 2023. You subsequently failed to appear on 30 August 2023 and a Bench Warrant was issued. After subsequent adjournments to check on the execution of the Bench Warrant, on 7 February 2024, the Court determined that it would deliver its Judgment on 15 April 2024.
   
5. You were subsequently arrested and charged with Absconding Bail in Ba Criminal Case No. CF 93/2024 and because of your arrest, you subsequently started appearing in this matter.
   
6. When this matter was called on 15 April 2024, as Prosecution’s evidence was recorded by this Court’s predecessor this Court informed you of your right under section 139(2) of the Criminal Procedure Act 2009, which allows an Accused to demand that the witnesses or any of them in the matter be re-summoned and re-heard. After informing you of this right, you informed that you wanted to take a progressive approach in the matter. As you were appearing in person, this Court allowed you further time to consider the right given under section 139(2) of the Criminal Procedure Act.
   
7. Subsequently, on 24 April 2024, you appeared and informed this Court, that you did not want to exercise your right under section 139(2) of the Criminal Procedure Act and that you wanted to take a progressive approach. As such, the charge was read to you and explained to you in your preferred language of English and you subsequently informed that you understood the charge. You then entered a Guilty plea to the charge of Theft.
   
8. Satisfied that you have fully comprehended the legal effect of your plea and that your plea was voluntary and free from influence, I now convict you and proceed to sentence you for this offence.
   

Circumstances of the offending

9. According to the Summary of Facts you admitted in Court, between 8-9 January 2021, the Complainant discovered that his 60HP Yamaha Outboard Boat engine valued at $10,000 was missing from the Ba Town Fishing wharf. The matter was reported and an investigation was conducted. Information was received from a Reenal Avinash Chand (“Mr. Chand”) that on 8 January 2021 that the Accused and another had informed him that they had to go to Ba to get a boat engine which belonged to them. Mr. Chand drove the Accused and the other person to Ba Town. Upon reaching the Town, the Accused and the other person told Mr. Chand to wait for them as they were going to get the engine. After 30-40 minutes, Mr. Chand received a call from the Accused telling him to come near the fishing wharf to load the engine into the car. Mr Chand went to the wharf and saw the Accused with the other person loading a 60HP Yamaha Boat engine into his car. After, they all left towards Lautoka. Upon reaching Lautoka they unloaded the engine.
   
10. Upon receiving this information, DC 5263 Savenaca went to check the outboard engine and seized it and brought it to Lautoka Police Station; DC Savenaca checked the serial number and checked with Ba Police Station and it was confirmed that an outboard engine with the same serial number had been stolen. Later the Complainant went to Lautoka Police Station whereby he saw the serial number of the boat engine and positively identified it as his.
    
11. The Accused was subsequently arrested with another and was interviewed under caution where he denied the allegation. The Accused was then charged for the offence herein.
    

Sentencing Regime

12. The maximum penalty for the offence of Theft is 10 years imprisonment.
    
13. The applicable tariff for such an offence as stated in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) is as follows:
    
    1. for a first offence of simple theft the sentencing range should be between 2 and 9 months.
       
    2. any subsequent offence should attract a penalty of at least 9 months.
       
    100. 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.
         
    4. regard should be had to the nature of the relationship between offender and victim.
       
    5. planned thefts will attract greater sentences than opportunistic thefts.
       

Mitigating and Aggravating Factors

14. The mitigating factors offered by the Accused are as follows:
    
    1. you are 43 years of age, married with 4 children who are all attending High School;

2. you are a taxi driver and earn about $200 per fortnight;
3. you are also a farmer cultivating your family’s lease land to make ends meet for your family;
4. you have an elderly father, who is sickly with a heart condition and can no longer work;
5. your son in Form 7 is currently working on the family land and you are worried that your current predicament will affect his education;
6. you entered an early guilty plea which has saved the court’s valuable time;
7. you are remorseful;
8. you seek the leniency of the court; and
9. there was full recovery of the outboard engine.
   

15. The aggravating factor in this matter is that there was a great degree of pre-planning or pre-meditation on you and your accomplice’s part in committing this offence
    

Sentence

16. In sentencing you, the Court has taken into account the factors outlined in section 4(1)-(2) of the Sentencing and Penalties Act 2009.
    
17. This is a prevalent offence, and it affects the society adversely, I find the objective seriousness is quite high and as the value of the outboard motor engine was a substantially large amount, the Court finds that applicable tariff would be that of the third limb in in Ratusili [supra]. As such, I take a starting point of 22 months imprisonment. I will then add 2 months for the aggravating factors, making it a total of 24 months imprisonment.
    
18. In Aitcheson v State Criminal Petition No: CAV 0012.2018 (2 November 2018) the Supreme Court offered guidance as to the weight to be given to a guilty plea. It was stated:
    

[14] The Court of Appeal considered only 9 months discount could be attributed to the early guilty plea in the judge’s sentencing remarks. The court referred to discussions in two earlier Court of Appeal decisions:

“In Rainima –v- The State [2015] FJCA 17; AAU 22 of 2012 (27 February 2015) Madigan JA observed:

“Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This court now adopts that principle to be valid and to be applied in all future proceeding at first instance.”

In Mataunitoga –v- The State [2015] FJCA 70; AAU125 of 2013 (28 May 2015) Goundar JA adopted a similar but more flexible approach to this issue:

“In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and qualification to the guilty plea (as a matter of practice and not principle) and assess the effect of the plea on the accused by taking into account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment”.”

[15] The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.

19. His Lordship Justice Sharma in State v Tanoa Criminal Case No.: HAC 202 of 2022 when dealing with a Guilty plea on the date of Trial (before the witnesses gave evidence) considered the guidance in Aitcheson [supra] regarding guilty pleas and stated the following:
    

14. This court accepts that genuine remorse leading to a guilty plea is a substantive mitigating factor in favour of an accused, however, the guilty plea must be entered in the true spirit of remorse since genuine remorse can reduce the harshness in the final sentence (see Manoj Khera v The State, CAV 0003 of 2016 (1 April, 2016).

15. When looking at this case, this court accepts that the accused has shown some remorse when he pleaded guilty. By pleading guilty the accused prevented the victim from reliving her experience in court which is favourable to the accused.

16. Genuine remorse is about genuinely feeling sorry for what a person has done, accepting guilt because of strong evidence and proof of the offender’s deeds and then pleading guilty is not genuine remorse per se (see Gordon Aitcheson’s case supra). In this regard, the sentencing court has a responsibility to assess the guilty plea along with other pertinent factors such as the timing of the plea, the strength of the prosecution case etc. Here there is no doubt the timing of the guilty plea is late and the accused by pleading guilty has not shown genuine remorse but some remorse in view of the strong prosecution case against him.

20. Considering Aitcheson and Tanoa [supra], I do not find that your plea has been taken at the earliest opportunity given that a Trial had taken place with 6 witnesses giving evidence. Further, this guilty plea is not out of genuine remorse or sincerity. As such, no weight will be given to your guilty plea.
    
21. Therefore, for your mitigating factors including full recovery of the stolen item, I deduct 2 months, leaving you with a balance of 22 months imprisonment.
    
22. Section 26(1) of the Sentencing and Penalties Act allows a court to make an order suspending the whole or part of the sentence if it is satisfied that it is appropriate to do so in the circumstances whilst section 26(2)(b) provides the Magistrates Court with the discretion to suspend a sentence where the sentence does not exceed 2 years.
    
23. However, the Court does not find that this is a case where a fully suspended sentence is warranted. Rather you deserve a partly suspended sentence to balance the need for rehabilitation and deterrence to denounce such offending and protect the public interest.
    
24. The case of State v Chand [2002] FJCA 50; AAU0027U.2000S (1 March 2002) highlighted the New Zealand Court of Appeal case of R v Petersen [1994] 2 NZLR 533 which discussed the factors needed to be weighed in choosing immediate imprisonment or suspended sentence as follows:
    

“Thomas at pp. 245-247 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analysed as relating either to the circumstances of the offender or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period of free of criminal activity. The need for rehabilitation and the offender’s likely response to the sentence must be considered. It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence, as such, there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even a comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately.

In concluding our consideration of the principles, we wish to add this. Understandably, the form of the legislation requires the sentencer to pass through a series of statutory gates, before reaching the point of availability of a suspended sentence. Subject to that however, like most sentencing what is required in the end is an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation. In many instances an initial broad look of this kind will eliminate the possibility of a suspended sentence as an appropriate response.”

25. His Lordship Justice Rajasinghe in Hakik v State Criminal Case: HAA 15 of 2016 (1 August 2016) also referred to the New Zealand case of R v Petersen [1994] 2 NZLR 533 and formulated the following list:
    
    57. According to the comprehensive observation made by Eichelbaum CJ in Petersen (supra), the sentencing court could consider the following factors, though they are not exhaustive, in determining whether it is appropriate to impose a suspended sentence, inter alia;
        
        1. The age of the offender,
        2. Previous good record, or a long period free of criminal activity,
        3. The need of rehabilitation,
        4. The likely response of the offender to the sentence,
        5. Whether the suspended sentence act as a strong deterrent to the offender,
        6. The gravity of the offence, such as diminished culpability arising through lack of pre-meditation or the presence of provocation.
        7. Whether the offender cooperated with the authority,
           
26. Thus, considering the factors enunciated in the above case laws, the Court turns its mind to the same and finds that the Accused is currently 43 years of age. At the time of this offending, the Accused had 10 active Previous Convictions (PCs) of which 4 PCs were for offences against property with his last sentence for a property related offence being in 2018. From the Summary of Facts admitted to, there was a high level of pre-meditation given the manner in which the offence took place. Moreover, there was no cooperation on the part of the Accused at the time of his interview as reflected in the Summary of Facts. Considering all of the above as well as the need to balance rehabilitation with that of deterrence to denounce such offending and to protect the public interest, the Court is of the view that a partly suspended sentence is warranted in this matter.
    
27. As such, you are to serve 12 months of your 22 months sentence with immediate effect.
    
28. The Court is mindful, that you were in custody from 1 September 2021 until 18 February 2022, which was when bail was granted to you and which is still afforded to you at the time of this Sentence.
    
29. Considering section 24 of the Sentencing and Penalties Act, the total of 4 months is considered as time already served by you.
    
30. Thus, your actual sentence to be served is now 8 months imprisonment. The remaining 10 months is to be suspended for a period of 2 years.
    
31. If you commit any crime during the 2 years, you are liable to be charged and prosecuted for an offending pursuant to section 28 of the Sentencing and Penalties Act.
    
32. You have 28 days to appeal.
    

N. Mishra
Resident Magistrate