State v Driu [2011] FJHC 107; HAC143.2010 (3 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 143 0F 2010

BETWEEN

STATE
PROSECUTION

AND

JESE DRIU
2ND ACCUSED

Counsel: Mr. M Korovou, Asst. DPP – Counsel for State
Accused in person

Date of Trial/Plea: 26th January, 2011
Date of Sentencing Submissions: 26th January, 2011
Date of Sentence: 03rd February, 2011

SENTENCE

1. Jese Driu, the 2nd Accused in the above case (the accused), stood charged for committing the offences of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) (a) and 291 (1) respectively of the Crimes Decree No 44 of 2009 (the Decree). The accused pleaded guilty to the charges. Court, upon being satisfied that the plea was voluntary and free from duress or any influence, proceeded to convict the accused on the plea of guilt.
   
2. The offence of 'Aggravated Burglary', which is indictable, attracts a punishment of 17 year-term of imprisonment, while the summarily triable offence of 'Theft' mandates a punishment upto a 10 year-term of imprisonment under the Decree.
   
3. The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (State v Mikaele Buliruarua) [2010] FJHC 384; (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).
   
4. In Buliruarua's case (supra), the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Burglary' under the Decree.
   
5. I would accordingly adopt the same tariffs for the offences of 'Burglary' and of 'Theft' under the Decree in this case.
   
6. Facts, as admitted by the accused, revealed that he (the accused) along with two others intruded into a pharmacy at Vitogo Parade in Lautoka after breaking the glass-doors with the throw of a brick. As the pharmacy remained unoccupied at the time of the incident around 11.30 in the night of 23.10.2010, the accused along with his companions stole $ 3298 in cash, assorted body-spray and other cosmetics to the value of $ 4041. The three of them had then fled in a van and bought beer to satisfy their drinking quench.
   
7. The act of burglary in this case has crystallized into its aggravated form in view of the fact that the offence was committed by the accused whilst being a member of a gang. There exists no evidence on the use of excessive force or deadly weapons or injury to any person. I, therefore, find no material to constitute any aggravating circumstance/s other than those that are embedded in the offence itself.
   
8. The accused is only 20 years of age and has had no criminal record or previous convictions. The Case Record reveals that the accused had been on remand for nearly six weeks for this offence. He states that the offence was resulted due to peer pressure and pleads for forgiveness enabling him to get into the mainstream of the society again. Moreover, the accused repents over the crime committed and pledges that he would not reoffend.
   
9. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No 42 of 2009 (the Sentencing Decree), especially those of the Sections set-out below in order to determine the appropriate sentence.
   
10. Section 15 (3) of the Sentencing Decree provides that:
    

'As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in [the General Sentencing Provisions of the Decree].'

11. The objectives of sentencing, as found in Section 4 (1) of the Decree, are as follows:
    

(a) To punish offenders to an extent and in a manner, which is just in all the circumstances;

(b) To protect the community from offenders;

(c) To deter offenders or other persons from committing offences of the same or similar nature;

(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) To signify that the court and the community denounce the commission of such offences; or

(f) Any combination of these purposes.

12. Section 4 (2) of the Decree further provides that in sentencing offenders, a court must have regard to:
    

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable guideline judgment;

(c) The nature and gravity of the particular offence;

(d) The offender's culpability and degree of responsibility for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) The offender's previous character;

(j) The presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for applying a particular sentencing option.

13. Section 4 of the Decree on 'Sentencing Guidelines', has been founded on the jurisprudential principle of 'balancing competing interests' of the offender, the victim and the society at large. (State v Tilalevu [2010] FJHC 258 HAC 81 of 2010; 20.07.2010).
    
14. It is, therefore, of paramount importance for any sentence to reflect court's bounden duty of protecting the community and its (court's) unhesitant approach of denouncing the commission of the offence within the prescribed parameters under the law. This can be manifested only by deterring the offenders and others who tempt to commit crime.
    
15. (a) In giving effect to the above legal provisions, I consider it just to order in respect of the offence of 'Aggravated Burglary' a term of imprisonment of 30 months subject to the following:
    
    • (i) Reduction of a period of 10 months for the early guilty plea as it demonstrated a true gesture of repentance;
      
    • (ii) Reduction of 6 months for the fact that the accused is a young first offender; and,
      
    • (iii) A further reduction of 2 months to set off his 6 week long detention on remand custody.
      

I would accordingly sentence the accused to a term of 12 month- imprisonment for the offence of 'Aggravated Burglary'.

(b) As regards the offence of 'Theft', it would be just to order a term of imprisonment of 24 months subject to the following:

• (i) Reduction of a period of 8 months for the early guilty plea as it demonstrated true repentance;
  
• (ii) Reduction of 6 months for the fact that the accused is a young first offender; and,
  
• (iii) A further reduction of 2 months against his detention on remand for nearly 6 weeks.
  

I accordingly sentence the accused to a term of eight month-imprisonment for the offence of 'Theft'.

16. The question that arises for consideration now is whether the sentences should be suspended.
    
17. I had the occasion of considering the propriety of imposing suspended sentences on first offenders, who also happened to be young, in the case of Tilalevu (supra). After a survey of authorities, I adopted the ruling in the case of State v Patrick Fong FJHC 722/2005, where it was held that:
    

'The appellant pleads that he is a young first offender and that his sentence should be suspended. He is wrong. This was violent offending. It will only be in rare and exceptional circumstances that the court may be required to consider a suspended term of imprisonment for violent offending. The public need for deterrence will often outweigh the personal needs of a young but violent first offender.'

18. In line with the above authority, I held in the case of Tilalevu (supra) that:
    

'... the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.'

19. In the circumstances, I am not inclined to suspend the sentences ordered in respect of the two charges totally. Instead, I am of the view that it would be expedient to award a partial suspension, as provided for under Section 26(1) of the Sentencing Decree, after taking into account that an opportunity for rehabilitation in the mainstream should be afforded to the accused who is in his youth.
    
20. I accordingly order that:
    

(i) A period of nine (09) months be suspended out of the term of 12 month-imprisonment in respect of the offence of 'Burglary under Section 313 (1) (a) of the Decree for five (5) years. The remaining three (03) month period of the term of imprisonment shall be operative and should run concurrent with the period of the sentence set-out below; and,

(ii) A period of six (06) months be suspended out of the term of 08 month-imprisonment imposed in respect of the offence of 'Theft' under Section 291(1) of the Crimes Decree for five (5) years. The remaining two (02) month period of the term of imprisonment shall be operative and should run concurrent with the period of the sentence set-out above.

21. The purpose and the effect of the suspended terms are explained to the accused along with the consequences of their breach under Section 26 (3) of the Sentencing Decree. If an offence punishable with a term of imprisonment is committed, the two suspended terms shall begin to run consecutively making a total of 15 month-imprisonment in addition to the sentence that the accused may get for the subsequent offence. The accused is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended sentence is an offence itself against Section 28 of the Sentencing Decree for which he could be arraigned and punished by court.
    
22. The total term of imprisonment that the accused has mandatorily to serve is three (03) months in imprisonment. Prison authorities are directed to facilitate the process of rehabilitation available for young offenders during the above term of imprisonment.
    

PRIYANTHA NAWANA

JUDGE
HIGH COURT, LAUTOKA

03rd FEBRUARY, 2011