State v Tabuakula - Sentence [2020] FJHC 464; HAC106.2020 (23 June 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 106 of 2020

STATE

V

TANIELA TABUAKULA

Counsel : Mr. Zenith Zunaid with Ms. Sujata Lodhia for the State
Ms. Aarti Prakash for the Accused

Sentence Hearing : 18 June 2020

Sentence : 23 June 2020

SENTENCE

[1] Taniela Tabuakula, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged, with the following offences:

COUNT 1

Statement of Offence

AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Act 2009.

Particulars of Offence

TANIELA TABUAKULA and another, in the company of each other, on the 12^th day of January 2020, at Suva, in the Central Division, entered into the property of NAGUR SAMI, as trespassers, with intent to commit theft.

COUNT 2

Statement of Offence

THEFT: Contrary to Section 291 (1) of the Crimes Act 2009.

Particulars of Offence

TANIELA TABUAKULA and another, in the company of each other, on the 12^th day of January 2020, at Suva, in the Central Division, dishonestly appropriated $1600.00 cash, 1x Veon branded 32 inch flat-screen television, 2x DVD players, 1x chain, rings and school shoes, the properties of NAGUR SAMI with the intention of permanently depriving NAGUR SAMI of the said properties.

[2] On 4 May 2020, the DPP filed the Information relevant to the case; while on 18 May 2020, the Disclosures were filed. On both these days on which the Information and Disclosures were filed, you were not produced in Court by the Suva Remand authorities.

[3] When you were next produced in Court, which was on 9 June 2020, you were ready to take your plea. 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] The Summary of Facts were filed in Court on the same day. 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:

“Accused 1 [A1]:

A1 in this matter is one, Taniela Tabuakula, 18 years old at the time of offending, unemployed, of Block 4, Flat 2, Mead Road Housing.

Complainant [PW1]:

The complainant in this matter is one, Nagur Sami, 62 years old, of Muslim League Settlement.

Prosecution Witness 2 [PW2]:

PW2 in this matter is one, Kinisimere Tabuavou, 36 years old, domestic duties, of Muslim League Settlement.

Prosecution Witness 3 [PW3]:

PW3 in this matter is one, Emosi Balewai, 17 years old, of Muslim League Settlement.

Prosecution Witness 4 [PW4]: Arresting Officer

PW4 in this matter is one, Jekope Nakula, Police Officer of Raiwaqa.

Prosecution Witness 5 [PW5]: Interviewing Officer

PW5 in this matter is one, DC Gukisuva, 40 years old, Police Officer of Tacirua.

Prosecution Witness 6 [PW6]:

PW6 in this matter is one, WPC 5526 Nabuta, 23 years old, Police Officer, of Laucala Beach.

Facts:

1. On the 12^th day of January 2020 at around 5.30 pm, the complainant received a call from his nephew stating that the complainant’s house was broken into. At the time, the complainant was not at home and after hearing the news relayed to him by his nephew, the complainant quickly got a taxi and rushed back to his house. Upon arrival, the complainant saw that his kitchen louvers were broken and some were missing. As the complainant entered through the main door of his house, he noticed that everything was in a mess.
2. The complainant noted that the following items were stolen: $1600.00 cash, 1 x Veon branded 32 inch flat-screen television worth $400.00, 2 x DVD players worth $200.00 each, 1 x chain valued at $800.00, Rings worth $5000.00, shoes worth $35.00.
3. The complainant also noticed that his back door was left open. The complainant then reported the matter to the police and sought their assistance. On the 14^th of March 2020, the complainant was called to the Nabua Police Station to identify a television. The complainant positively identified the television to be the same television that was stolen from his house.
4. PW2 stated that on the day of the incident at around 4.45 pm, she was sitting outside her house when two i-Taukei males asked her if they could cross as they needed to deliver a flat-screen television and a black travelling bag to another person. PW2 stated that after some time, PW3 approached her and stated that he knew the two youths as one Mesake who resides at “Topline” in Mead Road Housing and they had both attended school together.
5. PW3 stated that on the said day of the incident, as he was returning from church, he saw two i-Taukei youth carrying a flat-screen television and a carry bag. The youth who was carrying the flat-screen television told PW3 that they were moving things for an old lady. PW3 recognized the i-Taukei youth who was carrying the flat-screen television as they had both attended Form 3 at Suva Muslim College together in 2017. PW3 stated that the youth resided at “Topline” Mead road and he knew him as “Dan”.
6. On the 13^th of March 2020, after police investigations, police officers received information that the suspect (being the accused) was heading towards Nabua road. This is when the police officers managed to intercept the accused and conduct arrest.
7. The accused was then caution interviewed by PW5 on the 14^th of March 2020. The accused stated that on the said date of the incident he was at Muslim League Settlement in Nabua (Q & A 20). The accused started that nobody else was with him (Q & A 23). The accused then admitted that whilst wondering around at the Muslim League Settlement, he then entered into a house by removing two louver blades from the kitchen windows (Q & A 23-25). The accused stated that he entered the house because he saw it was empty (Q & A 28). The accused again admitted that he had entered the house alone (Q & A 29). The accused stated that once he was inside the house he then took a television with him (Q & A 30). The accused further stated that he then took the television and hid it near the Mead Road Taxi base (Q & A 35). The accused stated that he later then sold the television to one Rohit whom he knew as a taxi driver who works at the Mead Road taxi base (Q & A 37-41). When it was put to the accused that a witness had seen two of them carrying the television and a carry bag, this is when the accused admitted that the offence was committed by himself and his friend namely Mosese Tagiyalo (Q & A 42-43). The accused admitted that he was carrying the television whilst his accomplice was carrying the bag containing the DVD players and shoes (Q & A 45-48). The accused admitted to selling the television to Rohit for $70.00 but he was unaware as to what happened to the rest of the items (Q & A 47-51).
8. The recovered stolen television was shown to the accused during his record of interview and the accused confirmed that it was the same television that he had stolen from the complainant’s house (Q & A 52-54). The accused was thereafter charged with one count of Aggravated Burglary and Theft.
9. The accused in the company of his accomplice had entered into the property of the complainant as trespassers and thereafter committed theft of the items listed out in the Information with the intention of permanently depriving the complainant of his said properties.
10. Annexed hereto is the Record of Interview for the accused marked as “Annexure A”.”

[7] Taniela, 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); State v. Maikeli Turagakula and Another [2020] FJHC 101; HAC416.2018 (19 February 2020); State v. (Sachindra Sumeet) Lal & Another [2020] FJHC 147; HAC71.2019 (26 February 2020); and State v. (Rupeni) Lilo [2020] FJHC 401; HAC225.2018 (9 June 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 mond thefts in breach of trust, whether first offence or not can attract sentences of up to thto 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 of high value, and was consequent to you and your accomplice 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 Taniela, 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, Taniela, 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 a residential premises thereby paying scant regard to the property rights and privacy of the owner of the said property.

(iii) I find that there was pre-planning on your part in committing these offences. You have admitted in your Caution Interview Statement and also in the Summary of Facts that on the day of the offence, you were wondering around the Nabua Muslim League Settlement, when you saw that the complainant’s house was empty and thereafter you decided to commit the offence with your accomplice. This clearly shows pre- planning on your part.

(iv) It has been stated that only the complainant’s 32 inch flat-screen television was recovered in this case. None of the other items listed in the Information are said to have been recovered.

(v) You are now convicted of multiple offending.

[21] In mitigation you have submitted as follows:

(i) That you are 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) The complainant’s 32 inch flat-screen television had been recovered.

(v) That you entered a guilty plea at the earliest opportunity during these proceedings.

[22] Taniela, 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. I also acknowledge the fact that the complainant’s 32 inch flat-screen television had been recovered. 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 the earliest opportunity during 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 sentence 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 –1 year 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] Taniela you are just 18 years of age [Your Date of birth is 7 January 2002]. You are said to be residing with your older brother who is 21 years of age. Your brother is a student and also works at a Service Station. Your mother is said to have passed away in 2008, when you were only 6 years old. Your father is said to have left you when you were only 8 years old.

[29] Prior to being remanded for this case, you were a Year 12 student at John Wesley College in Raiwaqa. You have stated that you want to work in a bank someday.

[30] Taniela you were arrested for this case on 14 March 2020 and remanded in custody. You have been in custody since that day. Therefore, you have been in remand custody for over three months 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:

• You are a young offender;
• You have been of previous good character;
• You have fully cooperated with the Police;
• You have accepted responsibility for your conduct;
• You submit that you are truly remorseful of your actions and have sought forgiveness from this Court;
• You have assured Court that you will not re-offend;
• Some part of the stolen items have been recovered;
• You entered a guilty plea at the earliest opportunity in these proceedings;
• You have already spent over three months in remand custody for this case.
  

Accordingly, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentence.

[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 5 years.

[35] In the result, Taniela your final sentence of 2 years imprisonment, is suspended for a period of 5 years. You are 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 23^rd Day of June 2020

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.