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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 71 of 2019
STATE
V
1. SACHINDRA SUMEET LAL
2. ROHIT LAL
Counsel : Ms. Bhavna Kantharia for the State
Ms. Shantel Hazelman for the 1st and 2nd Accused
Sentence Hearing : 23 January 2020
Sentence : 26 February 2020
SENTENCE
[1] Sachindra Sumeet Lal and Rohit Lal, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged, 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
SACHINDRA SUMEET LAL and ROHIT LAL, on the 15th day of February 2019, at Nasinu, in the Central Division, entered into the house of EVELYN DEVI as trespassers, with intent to commit theft therein.
SECOND COUNT
Statement of Offence
THEFT: Contrary to Section 291 (1) of the Crimes Act 2009.
Particulars of Offence
SACHINDRA SUMEET LAL and ROHIT LAL, on the 15th day of February 2019, at Nasinu, in the Central Division, dishonestly appropriated 1 x black HP laptop, bag, mouse and charger, 1 x Samsung Galaxy tablet – black, 1 x iPhone – Apple brand – golden, 1 x iPhone – Apple brand – Silver, 2 x 9 carat chains – gold, 2 x 9 carat rings – gold, 1 x silver chain and heart shaped locket, 1 x pair of 9 carat gold earrings, 1 x bottle perfume (white linen) ladies perfume, the properties of EVELYN DEVI with intention of permanently depriving EVELYN DEVI of her properties.
[2] On 15 April 2019, the DPP filed the Disclosures relevant to the case; while on 1 May 2019, the Information was filed against the two of you.
[3] On 23 May 2019, you were ready to take your pleas. 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 pleas.
[4] Thereafter, a considerable amount of time was taken by both the prosecution and the defence to finalize the Summary of Facts in this case. The Summary of Facts were filed in Court only on 13 November 2019. On 22 November 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 pleas 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 both guilty on your own pleas and I convicted you of the two counts as charged.
[5] I now proceed to pass sentence on the two of you.
[6] The Summary of Facts filed by the State was as follows:
“1. The complainant in this is matter is Evelyn Devi hereinafter known as “PW1” of Muanikoso Settlement and owner of the villa at Pacific Harbour, Navua.
(i) Sachindra Sumeet Lal hereinafter known as ‘A1’, 29 years old, self-employed of Muanikoso Settlement.
(ii) Rohit Lal hereinafter known as ‘A2’, 26 years old, Mechanic of Waila Treatment Plant Road, Sawani.
(i) 1 x black HP laptop, bag, mouse and charger,
(ii) 1 x Samsung Galaxy tablet – black,
(iii) 1 x iPhone – Apple brand – golden,
(iv) 1 x iPhone – Apple brand – Silver,
(v) 2 x 9 carat chains – gold,
(vi) 2 x 9 carat rings – gold,
(vii) 1 x silver chain and heart shaped locket,
(viii) 1 x pair of 9 carat gold earrings,
(ix) 1 x bottle perfume (white linen) ladies perfume.
Emanuel further told PW1 that A1 told him that if he broke into the aunty’s house, he will take all the things and sell it.
On 15/2/19, after school, Emanuel went to his mother in Suva and met his brother – A1 who took him to Rajendra Supermarket. Emanuel saw A1 buy face cream and a bottle of coke and then told him what he had actually done at his aunty’s place. A1 told Emanuel that there were 2 more people who went with him and for him not to tell anyone. A1 gave Emanuel $10.00 and told him that the other items stolen are still locked and not yet sold. A1 told him that once same is sold, he will give Emanuel his share.
Emanuel also told PW1 that his younger brother – Samuel had also seen A1 and A2 walking near PW`1’s house.
PW1 then reported the matter to the police.
Swastika told the police that the jewellery was given to her by A1 and A2 which they got after having broken into the house of Evelyn.
He stated that he opened his shop at about 8 .00 a.m. and one customer – Swastika came with 2 x gold ring, 1 x pair earrings and 1 x gold chain. He stated that Swastika sold the jewelleries to him and he gave her $80.00 cash. He said that he also gave her a receipt for the same which she did not want to take.
They went to Sawani, Nausori wherein A2 came with his wife and then both A2 and his wife got out of the taxi with a laptop bag and he saw them meet one Nitin. After 2 hours both came back without the laptop bag and he then dropped both of them at Dhanji Street, Samabula at A2’s father’s residence.
He stated that the taxi fare was $30.00 but A2 did not pay him the fare but instead gave him BH 10 valued at $8.00 and paid cash $5.00 for the fuel.
Mr Reddy then stated that he was at Shelvin’s place at the time and Sonu – A2 gave him the black bag that contained HP brand laptop. He stated that he does not know how to operate the laptop but felt sorry for Sonu so took the laptop.
He stated that Sonu had come in a taxi and told him to keep the laptop and once he had the money he will come back to take the laptop. Mr Reddy gave A2, $200.00 for the same. Mr Reddy stated that he did not know that the laptop was stolen and that he was a businessman and can buy his own laptop but did this to help A2. Upon Police investigation, the laptop was given to the police.
Shalen stated that A1 is his brother’s son whereby he sometimes financially supports him. He stated that he had asked A1 whether the items were stolen but A1 said no, it belonged to his sister.
A1 in his record of interview was asked at Q.14 that on 9/2/19 whilst returning from Naca’s house with his brother Emanuel Lal he enquired what all was bought from overseas by Evelyn Chand’s husband; and A1 answered yes I did ask my brother and he told me about the items and a suitcase inside the house was full of money.
A1 remained silent for all the other questions put to him and at Q38, he was asked if there was anything else he wished to say about this matter and he stated ‘I am sorry for what happened and all the items now recovered.’
A1 stated at Q10 of the Charge Statement ‘I admit the offence of Theft but I did not break into the house of Evelyn. It was Rohit who broke into the house and I assisted him taking the items out, I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will.’
A2 stated that on the day of the alleged incident – 15/2/19, he received a call on his mobile from his wife’s number and his sister Swastika was on line – Q & A 29.
A2 stated that the sister called to tell him that there was a job of $1,000.00 and for him to go home.
Upon reaching the sister’s house, A2 said that the sister told him that Evelyn’s house was empty. A2 stated that one week prior the sister and the husband Sachindra Sumeet Lal had called to their house and told him that the house was empty and they had gone for vacation and for them to enter the house.
A2 stated that around 11.00 a.m. on 15/2/19 he and A1 after checking around climbed on to a tree then entered the house – Q37.
A2 stated that A1 had one pinch bar which he gave him and he took out the corrugated iron wall before he and A1 entered into the house Q &A 38.
A2 stated that he climbed on to A1’s back then entered the house Q & A 40.
A2 further stated that A1 entered the house from the front door which he opened upon entering the house – A & A – 41.
A2 stated that they searched the house and then took the laptop, jewelleries, 2 phones, 1 Samsung tablet, perfumes all the items were packed in a black bag Q & A 46.
A2 stated that he came out of the house through the main door with the black laptop bag and a black bag containing perfume and jewelleries Q & A 47.
Furthermore, A2 stated that A1 came out of the house the same way he entered.
They them jumped the fence coming out from the main door of the house.
A2 stated that his sister Swastika was outside keeping an eye for anyone coming. He said that Swastika then took the black bag which I threw out of the window Q & A 50.
A2 stated that the jewellery his sister took the items and sold it at the Mid-City jewellery shop and the perfume was his wife. The laptop he gave it to one of his friend Shelvin at nine miles Nakasi. Two Apple iPhones and one Samsung tablet are with A1’s brother – Salen Lal Singh residing at Caubati. And the laptop charger he left at the garage in Nadera. A & A 52.
Items recovered by the police shown to A2 –
(a) HP laptop black in colour (SNCND4212YV3), bag, mouse and charger,
(b) 1 black Samsung black tablet (SNR52JC0898AK)
(c) 1 Apple gold coloured Phone (SNDNRQF48FGRY7)
(d) 1 silver Apple iPhone model number A1688,
(e) HP laptop charger (SNF252921414026824),
(f) 1 white linen perfume,
(g) 2 gold rings - 9 carat,
(h) 1 pair 9 carat earrings,
(i) 2 9 carat gold chains,
(j) 1 silver chain and heart shaped locket,
(k) 1 Armani perfume.
The above items were admitted by A2 to be stolen by him and A1 at Q & A 57.
At Q58; A2 stated that he sold the laptop for $200.00 and used $150.00 for taxi fare, and the rest of the money he paid taxi fare for him and his wife to go to Samabula.
At Q & A 10 – A2 stated ‘I apologize for what I did’.
[7] Sachindra and Rohit, 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); State v. Etika Toka HAC 138.2019 (1 November 2019); State v. Vakacavuti HAC337.2018 (7 November 2019); State v. Vakacavuti [2019] FJHC 1088; HAC338.2018 (7 November 2019); State v. Peniasi Ciri and Another [2020] FJHC 63; HAC14.2019 (6 February 2020); and State v. Maikeli Turagakula and Another [2020] FJHC 101; HAC416.2018 (19 February 2020).
[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 subsequbsequent offence should attract a penalty of at least 9 months.(iii) Theft of large sums of money and thefts in breach of trusether first offence or not can attract sentences of up to t 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 assorted property, and was consequent to the two of you entering a residential premises as trespassers, this cannot be considered as theft simpliciter. Furthermore, this was a pre-planned theft. 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 Sachindra and Rohit, I commence your sentences 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, Sachindra and Rohit, I commence your sentences 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 a residential premises thereby paying scant regard to the property rights and privacy of the owners of the said property.
(iii) You both knew the complainant in this case. Sachindra the complainant is your aunt (your mother’s sister); while Rohit, you are Sachindra’s brother-in-law (your sister is married to Sachindra). So it is my opinion that there was a breach of trust.
(iv) I find that there was pre-planning on your part in committing these offences. You have both admitted in your Caution Interview Statements and also in the Summary of Facts that you had acquired prior knowledge of the items in the premises. This clearly shows pre- planning on your part.
(v) You are now convicted of multiple offending.
[21] In mitigation you have submitted as follows:
(i) That you are both first offenders and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you. Sachindra it is reported that you have a traffic offence (for drunk driving) currently pending against you in the Nasinu Magistrate’s Court. However, since a final determination has not been reached in that case as yet, I will consider you as a person of previous good character for the purpose of sentencing in this case.
(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) You both are said to have sought forgiveness from the complainant, who has accepted same.
(v) All the stolen items have been recovered.
(vi) That you both entered guilty pleas at an early stage of these proceedings.
[22] Sachindra and Rohit, considering the aforementioned aggravating factors, I increase your sentences by a further 5 years. Now your sentences for count one would be 6 years and 6 months imprisonment. Your sentences for count two would be 5 years and 6 months imprisonment.
[23] I accept that you both are persons of previous good character and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and the fact that you have sought forgiveness from the complainant. I also acknowledge the fact that all the stolen items have been recovered. Accordingly, considering the mitigating factors, I deduct 2 years and 6 months from your sentences. Now your sentences for count one would be 4 years imprisonment. Your sentences for count two would be 3 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 each for counts one and two.
[25] In the circumstances, your sentences are as follows:
Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-3 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 3 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] Sachindra you are now 29 years of age [Your Date of birth is 28 March 1990]. At the time of offending you would have been 28 years of age. You are said to be married, with one daughter who is about 2 and a half years old. You are now said to be employed as a labourer, earning $150.00 per week.
[29] Rohit you are now 27 years of age [Your Date of birth is 15 January 1993]. At the time of offending you would have been 26 years of age. You are said to be married, with one son. You are said to be employed as a mechanic, earning $200.00 per week.
[30] Sachindra you were arrested for this case on 20 February 2019 and remanded in custody. Rohit you were arrested for this case on 19 February 2019 and remanded in custody. You were both granted bail by this Court on 8 March 2019. Therefore, you have been in remand custody for little over two weeks for this case.
[31] 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.”
[32] 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.”
[33] 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 sentences.
[34] However, 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.
[35] In the result, Sachindra your final sentence of 3 years imprisonment, is suspended for a period of 7 years. Rohit your final sentence of 3 years imprisonment, is suspended for a period of 7 years. You are both advised of the effect of breaching a suspended sentence.
[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 26th Day of February 2020
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Office of the Legal Aid Commission, Suva.
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