State v S.W.V.R [2021] FJHC 409; HAC187.2020 (22 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 187 of 2020

STATE

V

S.W.V.R [Juvenile One]

AND

J.I.R [Juvenile Two]

Counsel : Ms. P.K. Lata for the State.

Ms. E. Radrole for the First Juvenile.

Ms. V. Narara for the Second Juvenile.

Date of Submissions: 07 December, 2021

Date of Hearing : 08 December 2021

Date of Sentence : 22 December, 2021

PUNISHMENT

(The name of both the juveniles are suppressed they will be referred to as “S.W.V.R” and “J.I.R” respectively).

1. Both the juveniles are charged by virtue of the following information filed by the Director of Public Prosecutions dated 30^th December, 2020:
   

COUNT ONE
Statement of Offence

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

Particulars of Offence

S. W. V. R. and J. I. R, between the 15^th and 16^th day of November 2020, at Sigatoka in the Western Division, in the company of each other entered into the SHALINI GARDEN APARTMENT RESTAURANT, as trespassers, with intent to commit theft.

COUNT TWO
Statement of Offence

THEFT: contrary to section 291 (1) of the Crimes Act 2009.

Particulars of Offence

S. W. V. R and J. I. R, between the 15^th and 16^th day of November 2020, at Sigatoka in the Western Division, dishonestly appropriated (stole) some assorted liquor, the property of SHALINI GARDEN APARTMENT RESTAURANT, with the intention of permanently depriving SHALINI GARDEN APARTMENT RESTAURANT of the said properties.

2. On 12^th November, 2021 both the juveniles pleaded guilty to both counts in the presence of their counsel. Thereafter, on 24^th November 2021, both the juveniles admitted the summary of facts read by the state counsel as follows:
   
   1. The complainant is Ronesh Narayan, 41 years old, owner of Shalini Garden Apartment Restaurant, of Olosara, Sigatoka.
      
2. Juvenile 1 is S. W. V. R. (hereafter J1), 14 years, student of Cautata village, Bau, Tailevu.
   
3. Juvenile 2 is J. I. R. (hereafter J2), 14 years, student of Cautata village, Bau, Tailevu.
   
4. On 16^th November, 2020 at around 12.30pm Julia Fong (hereafter PW1) restaurant assistant of Shalini Apartment Restaurant opened the restaurant. When PW1 went towards the food pantry, she noticed turmeric bottle on the floor and turmeric powder was all scattered over the floor with foot prints on it. PW1 informed the restaurant owner Mr. Ronesh Narayan (hereafter PW2) about it.
   
5. PW2 checked his restaurant and saw the window mosquito netting was torn and the window could not lock properly. PW2’s wife namely Sharon Chand (hereafter PW3) checked the restaurant and found out that the following items were missing:

1 x 1125ml Bounty Rum $82.00

3 x Chinese Wine $15.00

8 x Fiji God beer $36.00

8 x Fiji Bitter beer $36.00

12 x 330 ml Tribe burbon cola $49.00

TOTAL $217.00

6. Both the juveniles admitted to Waisea Lumelume Rogoyawa (hereafter PW4), father of J1 that they broke into the Shalini Apartment Restaurant and stole the assorted drinks. PW4 then took both the juveniles to Sigatoka Police Station.
   
7. J1 was interviewed by Arvind Sharma in the presence of his father, J2 was interviewed by Asaeli Sivo in the presence of his father. J1 admitted entering into the restaurant and stealing the assorted liquor and drinking it with J2 [Q&A27-48]. J2 admitted standing outside and waiting for J1. Both of them planned together to enter in Shalini Apartment Restaurant and stealing the liquor [Q&A52-105]. [Please find attached their record of interview respectively at Tab 1 and Tab 2].
   
8. There were no recoveries in the matter.
   
3. After considering the summary of facts read by the state counsel which was admitted by all the juveniles and upon reading their caution interviews, this court is satisfied that all the juveniles have entered an unequivocal plea of guilty on their freewill.
   
4. This court is also satisfied that all the juveniles have fully understood the nature of the charges and the consequences of pleading guilty. The summary of facts admitted satisfies all the elements of both the offences. All the juveniles also admitted committing the offences in the company of each other. In view of the above, this court finds all the juveniles guilty as charged.
   
5. The learned counsel for both the juveniles presented the following mitigation and personal details:
   

JUVENILE ONE – S.W.V.R

1. The juvenile was 14 years at the time;
2. First time in conflict with the law;

100. Year 10 student;

4. Pleaded guilty at the earliest opportunity;
5. Remorseful and apologies for his actions;
6. Cooperated with police during investigations.
   

JUVENILE ONE – J.I.R

1. The juvenile was 14 years at the time;
2. First time in conflict with the law;

100. Year 10 student;

4. Pleaded guilty at the earliest opportunity;
5. Remorseful and apologies for his actions;
6. Cooperated with police during investigations.
   

TARIFF

6. The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.
   
7. The accepted tariff for this offence is a sentence between 18 months to 3 years imprisonment (see Leqavuni v. State, Cri Appe Appeal No. AAU 106 of 2014 (26 February, 2016).
   
8. For the offence of theft the maximum penalty is 10 years imprisonment.
9. The tariff for the offence of theft is settled. In Mikaele Ratusilitate, Cre, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft as follows:&#16i>

“(i) For the first offence of simple theft the sentencing range should ould be between 2 and 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.”

10. Both juveniles fall under special categorization than adults when it comes to punishment under section 30(3) of the Juveniles Act as young persons which prescribes the maximum punishment for young persons at 2 years imprisonment.
    

SOCIAL WELFARE REPORT

11. As per the order of this court the Social Welfare Department, Nausori has prepared a pre-punishment report for both juveniles for which this court is grateful. The reports recommend the following:
    
    1. Both the juveniles be given a second chance, both are dedicated students who are keen to complete their dreams of becoming a Pilot and Civil Engineer respectively;
       
    2. Both have parental and/or family support which is a positive sign for them;
       
    100. Both juveniles are remorseful and they understand the consequences of their actions which they do not wish to repeat; and
         
    4. Counseling and community supervisors will be of assistance to the juveniles.
       

PARENTAL VIEW/SUPPORT

12. The mother of the first juvenile Ana Ratuva and the father of the second juvenile Rupeni Ratawake were present in court. The parents take responsibility of what has happened, they are sorry for the actions of their sons. They are going to make sure both the juveniles are properly supervised and do not repeat what has happened.
    
13. The parents are willing to sign a bond of $500.00 each on behalf of each juvenile and they are also willing to compensate the victim by paying $110.00 for each juvenile.
    
14. The juveniles expressed remorse in court and were genuinely apologetic for what they had done. I am sure this experience was an eye opener for both of them. The juveniles had to face their family and friends which has also contributed to a learning experience which has taught them to keep away from conflict with the law.

DETERMINATION

15. Section 17 of the Sentencing and Penalties Act states:
    

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

16. Taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate punishment for the two offences.
    
17. Considering the objective seriousness of the offences committed I select 18 months imprisonment (lower range of the tariff) as the aggregate punishment of both the offences. The punishment is increased for the aggravating factors and a reduction allowed for the early guilty plea, mitigation, and police custody.
    
    18. The final aggregate punishment for the two offences is 1 year and 10 months imprisonment. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspend the final punishment since it does not exceed 3 years imprisonment.
        
    19. In , Goundar J. reiterated the fong guidelines in respect of suspension of a sentence at paragraph 23:
        

“[23] In DPP v Jolame Pita (1974) 20 FLGrant Actg. CJ . CJ (as he then was) held that in order to justify the imposition of a suspended sentence, there must be factors rendering immediate imprisonment inappropriate. In that case, Grant Actg. CJ was concerned about the number of instances where suspended sentences were imposed by the Magistrates' Court and those sentences could have been perceived by the public as 'having got away with it'. Because of those concerns, Grant Actg. CJ laid down guidelines for imposing suspended sentence at p.7:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence as, for example, the misappropriation of a modest sum not involving a breach of trust, or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate."

19. The following relevant special circumstances or special reasons for the suspension of the imprisonment term in my view needs to be weighed in choosing an immediate imprisonment term or a suspended punishment. Theniles are young persons sons as per the Juveniles Act, they are of good character, isolated offences were committed by them, they were both 14 years of age at the time of the offending, pleaded guilty at the earliest opportunity, are genuinely remorseful, cooperated with police and they take full responsibility of their actions. These special reasons render immediate imprisonment inappropriate.
    
20. I am sure both the juveniles with parental and family guidance, supervision and support have a bright future ahf them hence an imprisonmenonment term will not augur well for their future, the juveniles have been in police custody which is in itself an adequate and appropriate punishment, an experience that will remind them to keep away from conflict with the law. This court has taken into account rehabilitation over and above deterrence.
    
21. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that this punishment is just in all the circumstances of the case.
    
22. Let me remind both the juveniles that leading a life within the boundaries of criminal activities do not assist it only takes a person deeper and deeper into a world of uncertainty and misery. The society does not condone such activities and this court also denounces such behaviour.
    
23. This is an opportunity for both the juveniles to stop entering the world of uncertainty and lead a happy life with their parents, family members and siblings. The only reason why the punishment is below the tariff is because the Juveniles Act imposes a limit on the punishment of young persons.
    
24. In summary the juveniles are given a punishment of 1 year and 10 months imprisonment as an aggregate punishment respectively for both the offences which is suspended for 3 years. The effect of suspended sentence is explained. The following orders are to take effect immediately.

ORDERS

1. The juveniles are given a punishment of 1 year and 10 months imprisonment respectively as an aggregate punishment for the two counts mentioned in the information which is suspended for 3 years with immediate effect;
   
2. The parents or the next of kin of the juveniles are to sign a good behaviour bond on behalf of the juveniles in the sum of $500.00 each. Furthermore, the parents of the juveniles are to pay the sum of $110.00 for each juvenile as compensation to the victim within 14 days from today payable at the Magistrate’s Court nearest to them;
   

100. The Social Welfare Department is to immediately arrange for the counseling of both juveniles in the presence of their parents with the view of assisting them in keeping out of peer group influence and to engage in education and training;
     

4. The Social Welfare Department is also at liberty to work out any programs or plans which will be in the interest of all the juveniles;
   
5. It is the responsibility of the parents of both the juveniles to ensure that the juveniles obey any directions given by the Social Welfare Department;
   
6. The Social Welfare Department in consultation with the parents and guardians of the juveniles are at liberty to appoint probation or community officers who can supervise or guide the juveniles;
   
7. A copy of this punishment is to be served on the Officer in Charge of the Social Welfare Department;
   
8. 30 days to appeal to the Court of Appeal.
   

Sunil Sharma
Judge

At Lautoka
22^nd December 2021

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for all the Juveniles.