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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 338 of 2018
STATE
V
1. SIMIONE VAKACAVUTI
2. DB
Counsel : Mr. Rajneel Kumar with Ms. Sheenal Swastika for the State
Ms. Swarvana Prakash for the 1st Accused
Sentence Hearing : 3 September 2019
Sentence : 7 November 2019
The name of the Juvenile has been suppressed. Accordingly, he will be referred to as DB.
SENTENCE
[1] Simione Vakacavuti, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged, along with DB, with the following offences:
FIRST COUNT
Statement of Offence
AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Act 2009.
Particulars of Offence
SIMIONE VAKACAVUTI AND DB, on the 18th of August 2018, at Naloto Village, Tailevu, in the Eastern Division, entered into the house of NEMAI RATABACACA as a trespasser, with intent to steal.
SECOND COUNT
Statement of Offence
THEFT: Contrary to Section 291 (1) of the Crimes Act 2009.
Particulars of Offence
SIMIONE VAKACAVUTI AND DB, on the 18th of August 2018, at Naloto Village, Tailevu, in the Eastern Division, stole 1 x Hisense Led TV Screen valued at $750.00 and 1 x camouflage bag valued at $60.00 all to the total value of $810.00, the property of NEMAI RATABACACA and MESULAME TIKOMAIVULINITU.
[2] On 29 November 2018, the DPP filed the Information; while on 8 February 2019, the Disclosures relevant to the case were filed.
[3] On 14 March 2019, you were ready to take your plea. On that day you pleaded not guilty to both counts in the Information. However, on the 3 May 2019, your plea was taken once again and you pleaded guilty to both counts in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charges against you and the consequences of your plea.
[4] Thereafter, the State filed the Summary of Facts. On 9 July 2019, the Summary of Facts were read out and explained to you and you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the two counts in the Information, and found the two counts proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the two counts as charged.
[5] I now proceed to pass sentence on you.
[6] The Summary of Facts filed by the State was as follows:
“BRIEF BACKGROUND
It was alleged that on the 18th of August 2018, one Simione Vakacavuti, 19 years old, unemployed, of Naloto Village, Tailevu, and DB, 17 years old, unemployed, of Naloto Village, Tailevu, allegedly entered Nemai Ratabacaca’s house through the window of one of the bedrooms and stole one Hisense Led TV screen valued at $750.00 and one camouflage backpack valued at $60.00, all to the total value of items stolen was $810.00.
The first accused and the juvenile persons have pleaded guilty to the Aggravated Burglary contrary to Section 313 (1) (a) and Theft contrary to Section 291 (1) of the Crimes Act 2009.
OFFENCE
On the 18th of August 2018, Simione Vakacavuti and DB were at Naloto Village, Tailevu for a family function. During the course of the family function, the accused persons planned to break into Nemai Ratabacaca’s house with the intention to steal.
As they arrived at Nemai Ratabacaca’s house, Simione Vakacavuti removed the louver blades from a window of a bedroom. Simione Vakacavuti entered the house using the window, and then he opened the kitchen door for DB to enter the said house. They took one Hisense LED TV Screen valued at $750.00 and one camouflage backpack valued at $60.00, all to the total value of $810.00.
They existed the house through a door of the kitchen and Simione took the flat screen television to the cassava patch next to DB’s house while DB took the camouflage bag into his house. Afterwards, DB packed the flat screen in a sack to load on to the carrier that was to leave for Suva, so that they could sell the items.
Before the carrier could leave for Suva, the two accused were then searched and the same stolen items were recovered.
CAUTION INTERVIEW AND THE CHARGE
Simione Vakacavuti and DB were arrested on the 18th August 2018.
Simione was then interviewed under caution on the 18th of August 2018 and he had admitted to the unlawful acts in Questions and Answers 19-31.
In addition, DB was also interviewed on the same day, and he admitted to the unlawful acts in Questions and Answers 13-30.
They were charged on the 19th of August 2018.
In light of the above, the first accused and the juvenile have pleaded guilty to the Aggravated Burglary contraction to Section 313 (1) (a) and Theft contrary to Section 291 (1) of the Crimes Act 2009 on the 3rd of May 2019 on their own free will.”
[7] Simione Vakacavuti, you have admitted to the above Summary of Facts and taken full responsibility for your actions.
[8] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:
4. — (1) The only purposes for which sentencing may be imposed by a court are —
(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.
[9] I have duly considered the above factors in determining the sentence to be imposed on you.
[10] In terms of Section 313 (1) of the Crimes Act, “A person commits an indictable offence (of Aggravated Burglary) if he or she-
(a) Commits a burglary in company with one or more other persons; or
(b) ...........”
The offence of ‘Burglary’ is defined at Section 312 (1) of the Crimes Act as follows: “A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building”.
The offence of Aggravated Burglary in terms of Section 313 (1) of the Crimes Act carries a maximum penalty of 17 years imprisonment.
[11] The tariff for the offence of Aggravated Burglary is between 18 months to 3 years imprisonment. This tariff has been adopted in several decided cases: State v. Mikaele Buliruarua [2010] FJHC 384; HAC 157.2010 (6 September 2010); State v. Nasara [2011] FJHC 677; HAC 143.2010 (31 October 2011); State v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16 May 2013); State v. Seninawanawa [2015] FJHC 261; HAC 138.2012 (22 April 2015); State v. Seru [2015] FJHC 528; HAC 426.2012 (6 July 2015); State v. Drose [2017] FJHC 205; HAC 325.2015 (28 February 2017); and State v. Rasegadi & Another [2018] FJHC 364; HAC 101.2018 (7 May 2018).
[12] The Court of Appeal in Leqavuni v. State [2016] FJCA 31; AAU 106.2014 (26 February 2016), observed that the tariff for Aggravated Burglary is between 18 months to 3 years.
[13] This Court has been consistently following the tariff of 18 months to 3 years imprisonment for Aggravated Burglary: Vide State v. (Venasio) Cawi & 2 others [2018] FJHC 444; HAC 155.2018 (1 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 536; HAC 92.2018 (20 June 2018); State v. Pita Tukele & 2 others [2018] FJHC 558; HAC 179.2018 (28 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 995; HAC 92.2018 (17 October 2018); State v. (Maika) Raisilisili [2018] FJHC 1190; HAC 355.2018 (13 December 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 1209; HAC 92.2018 (18 December 2018); State v. Michael Bhan [2019] FJHC 661; HAC 44.2019 (4 July 2019); and State v. Etika Toka HAC 138.2019 (1 November 2019).
[14] In terms of Section 291 (1) of the Crimes Act “A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property”. The offence of Theft in terms of Section 291 (1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[15] In Ratusili v. State [2012] FJHC 1249; HAA011.2012 (1 August 2012); His Lordship Justice Madigan proposed the following tariff for the offence of Theft:
“(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.”
[16] Since the theft in this case involved property valued at $810.00, and was consequent to you entering the residential premises of the complainants as a trespasser, this cannot be considered as theft simpliciter. Therefore, it is my opinion that the appropriate tariff in this case should be in the range of 2 months to 3 years imprisonment for the offence of Theft.
[17] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:
“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. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”
[18] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Simione Vakacavuti, I commence your sentence at 18 months imprisonment for the first count of Aggravated Burglary.
[19] Similarly, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Simione Vakacavuti, I commence your sentence at 6 months imprisonment for the second count of Theft.
[20] The aggravating factors are as follows:
(i) The frequent prevalence of these offences in our society today.
(ii) You trespassed into the residential premises of the complainant thereby paying scant regard to the privacy of the complainant.
(iii) I find that there was pre-planning on your part in committing these offences. You have admitted in the Summary of Facts that during the course of the family function you were attending, that you, along with the Juvenile, had planned to break into the premises of the complainant with the intention to steal This clearly shows pre- planning on your part.
(iv) You are now convicted of multiple offending.
(v) You have also pleaded guilty and been convicted in HAC 337 of 2018, which is also a similar case of Aggravated Burglary and Theft, committed on the same day as this case.
[21] In mitigation you have submitted as follows:
(i) That you are a first offender and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.
(ii) That you fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.
(iii) You have submitted that you are truly remorseful of your actions and assured Court that you will not re-offend.
(iv) It is submitted that you have apologized to the complainants and sought their forgiveness in the traditional manner through itaukei customs.
(vi) All the stolen property was recovered.
(vi) That you entered a guilty plea at an early stage of these proceedings.
[22] Considering the aforementioned aggravating factors, I increase your sentence by a further 4 years. Now your sentence for count one would be 5 years and 6 months imprisonment. Your sentence for count two would be 4 years and 6 months imprisonment.
[23] I accept that you are a person of previous good character and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine. Accordingly, considering the mitigating factors, I deduct 2 years and 6 months from your sentences. Now your sentence for count one would be 3 years imprisonment. Your sentence for count two would be 2 years imprisonment.
[24] I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court. For your early guilty plea I grant you a further discount of 12 months for count one. Since I propose to make your sentences concurrent I do not deem it necessary to grant you any further discount for count two in lieu of this factor.
[25] In the circumstances, your sentences are as follows:
Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-2 years imprisonment.
Count 2- Theft contrary to Section 291 (1) of the Crimes Act –2 years imprisonment.
I order that both sentences of imprisonment to run concurrently. Therefore, your final total term will be 2 years imprisonment.
[26] The next issue for consideration is whether your sentences should be suspended.
[27] Section 26 of the Sentencing and Penalties Act provides as follows:
(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.
(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—
(a) does not exceed 3 years in the case of the High Court; or
(b) does not exceed 2 years in the case of the Magistrate’s Court.
[28] Simione Vakacavuti you are now 20 years of age [Date of birth 10 July 1999]. At the time of offending you would have been 19 years of age. You are said to be single and currently residing at Naloto Village, Naitasiri. You were previously said to be unemployed. However, you are said to have now started farming to derive an income.
[29] You were arrested for this case on 18 August 2018 and remanded in custody. You were granted bail by this Court on 10 September 2018. Therefore, you have been in remand custody for about 24 days for this case.
[30] In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held:
“....However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”
[31] In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held:
“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”
[32] I have considered the following circumstances:
Accordingly, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentence.
[33] However, as mentioned before, today I will be sentencing you for this case and for the connected matter that you have been convicted, HAC 337 of 2018, which is also a similar case of Aggravated Burglary and Theft, committed a few hours apart. Therefore, in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentence for a period of 7 years.
[34] In the result, your final sentence of 2 years imprisonment, is suspended for a period of 7 years. You are advised of the effect of breaching a suspended sentence.
[35] For the purpose of clarity, in the event you are found guilty and convicted for any offence, which is punishable by imprisonment, committed in the next 7 years, the operational period, the suspended sentence of 2 years imprisonment imposed in this case will have to be served consecutive to the suspended sentence of 2 years imprisonment I am imposing in HAC 337 of 2018.
[36] You have 30 days to appeal to the Court of Appeal if you so wish.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 7th Day of November 2019
Solicitors for the State: Office of the Director of Public Prosecutions, Suva.
Solicitors for the 1st Accused & Juvenile: Office of the Legal Aid Commission, Suva.
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