State v Dravu - Sentence [2021] FJHC 410; HAC72.2021 (22 December 2021)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CRIMINAL JURISDICTION

Criminal Case No.: HAC 72 of 2021

STATE

V

1. TARAIASI DRAVU
   
2. SAILOSI MATARI
   

Counsel : Ms. L. Latu for the State.

Ms. S. Ali for both the Accused.

Date of Submissions: 21 December, 2021

Date of Sentence : 22 December, 2021

SENTENCE

1. Both the accused persons are charged with the following offences as per the information filed by the Director of Public Prosecutions dated 17^th September, 2021:
   

FIRST COUNT
Statement of Offence

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

Particulars of Offence

TARAIASI DRAVU and SAILOSI MATARI, between the 7^th day of January, 2021 and the 8^th day of January, 2021 at Naqoro, Rakiraki in the Western Division entered into the dwelling house of RAVINDRA, as a trespasser with the intention to steal from therein.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

TARAIASI DRAVU and SAILOSI MATARI, between the 7^th day of January, 2021 and the 8^th day of January, 2021 at Naqoro, Rakiraki in the Western Division dishonestly appropriated (stole) the following items:

1. 2 x Brush cutters;
2. 1 Fork;

100. 1 Spade; and

4. 1 Shovel;
   

the properties of Ravindra, with the intention of permanently depriving the said Ravindra of the said properties.

2. On 30^th November, 2021 and 14^th December, 2021 the second and the first accused respectively pleaded guilty to both counts mentioned above in the presence of their counsel.
3. Thereafter on 14^th December, 2021 both the accused persons admitted the summary of facts read by the state counsel. The summary of facts is as follows:
   

On the 7^th of January, 2021 the victim went to the house of his mother in law for shelter due to Cyclone Yasa. The next day at about 10am, the victim went to his house to do some cleaning, when he opened the main door he noticed that the kitchen door was open which was unusual because he had closed the kitchen door before leaving. The victim knew that something was wrong and when he checked the house he noticed that the following items were missing:

1. 2 Brush cutters valued at $1,150.00;
2. 1 Fork valued at $90.00;

100. 1 spade valued at $50.00

4. 1 shovel value at $60.00.

TOTAL $1,350.00

The matter was reported to the police and an investigation was carried out whereby both accused were arrested and caution interviewed. The first accused in his caution interview admitted that he broke into the victim’s house alone and stole the items listed above and further he stated that the second accused was with him that night who helped him carry the stolen items.

According to this accused the brush cutters were hidden in the hillside whilst the spade, fork and shovel were given to one Denisi. A copy of the record of interview of the first accused was marked as “A”. Furthermore, the first accused also admitted in his charge statement of his involvement in this case with the second accused and sought forgiveness for what he had done. A copy of the charge statement of the first accused was marked as “B”.

In regards to the second accused, in his caution interview he admitted that he broke into the victim’s house with the first accused and they stole the above items listed above. A copy of the caution interview of the second accused was marked as “C”.

The two brush cutters valued at $1,150.00 were recovered and positively identified by the victim as his.

4. 4. After considering the summary of facts read by the state counsel which was admitted by both the accused persons and upon reading their caution interviews and the charge statement of the first accused this court is satisfied that both the accused persons have entered an unequivocal plea of guilty on their freewill.
   
5. This court is also satisfied that both the accused persons have fully understood the nature of the charges and the consequences of pleading guilty. The summary of facts admitted by both the accused persons satisfies all the elements of the offence of aggravated burglary and theft they are charged with. The accused persons also admitted committing both the offences in the company of each other.
   
   6. In view of the above, this court finds both the accused persons guilty as charged and they are convicted accordingly.
      
   7. The two offences with which both the accused persons have been convicted are founded on the same facts hence it is only proper that an aggregate sentence be imposed.
      

8. 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.”

9. Both counsel have filed written sentence and mitigation submissions for which this court is grateful.
   

10. The counsel for both the accused presented the following mitigation:

Accused one – Taraiasi Dravu

1. He was 21 years at the time;
2. First offender;

100. He is a Farmer who earns about $200.00 per month;

4. He regrets what he has done;
5. Pleaded guilty at the earliest opportunity;
6. Cooperated with the police;
7. Recovery of items valued at $1,150.00
8. Is remorseful of his actions;
9. Seeks forgiveness from the victim and the court;
10. Promises not to reoffend.
    

Accused two – Sailosi Matari

1. He was 22 years at the time;
2. First offender;

100. He is a Farmer who earns about $40.00 per week;

4. Sole breadwinner of the family;
5. Pleaded guilty at the earliest opportunity;
6. Cooperated with the police;
7. Recovery of items valued at $1,150.00;
8. Is remorseful of his actions;
9. Regrets what he has done;
10. Seeks forgiveness from the victim and the court;
11. Promises not to reoffend.
    

TARIFF

11. The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.
    
12. The accepted tariff for this offence is a sentence between 18 months to 3 years imprisonment (see Leqavunitate, Criminal Appe Appeal No. AAU 106 of 2014 (26 February, 2016).
    
13. For the offence of theft the maximum penalty is 10 year years imprisonment.
    
14. The tariff for the offence of theft is settled. In Mikaele Ratusili v. State,

Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan t

ut the tariff for theft as follows:

(i) For the fihe first offence of simf simple theft the sentencing range shouldetween 2 and 9 months.

(ii) any subsequent oent 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.”

AGGRAVATING FACTORS

15. The following aggravating factors are obvious:
    
    1. Night time invasion of property

It was during the night both the accused persons forcefully entered the house of the victim. They were bold and undeterred.

2. Planning

There is some degree of planning involved the accused persons knew the victim was not at home.

100. Prevalence of the offence

The offences committed are very prevalent nowadays that people are reluctant to leave their houses unattended.

16. Considering the objective seriousness of the offending, I select 18 months imprisonment (lower range of the tariff) as the aggregate starting sentence of both the offences. The sentence is increased for the aggravating factors and reduced for mitigation, early guilty plea, and the remand period of 5 months and 17 days for the first accused.
17. Based on the above, the final aggregate sentence for the two offences is 2 ½ years’ imprisonment. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspend the final sentence since it does not exceed 3 years imprisonment.
    
18. In State vs. Alipate Sorovanalagi and others, Revisional Case No. HAR 006 of 2012 (31 May 2012), Goundar J. reiterated the following guidelines in respect of suspension of a sentence at paragraphs 22 and 23:

“[22] I accept that the Magistrates' Court has discretion to suspend a sentence if the final term imposed is 2 years or less. But that discretion must be exercised judiciously, after identifying special reason to suspend the sentence. The special reason can vary depending on the facts of each case.

[23] In DPP v Jolame Pita (1974) 20 FLR 5, Grant Actg 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 sentence.
    
20. The accused persons are first offenders of comparatively good character, isolated offences committed, are in their early twenties, pleaded guilty at the earliest opportunity, are remorseful, substantial recovery of stolen items, cooperated with police during the investigations and they take full responsibility of their actions. In my view these special reasons supersede any immediate imprisonment term.
    
21. Both the accused persons are young offenders, with a bright future ahead of them, an imprisonment term will not augur well for their future, the first accused has also been in remand for about 5 months and 17 days which is in itself some form of punishment. This court has taken into account rehabilitation over and above retribution.
    
22. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that a suspended sentence is justified in all the circumstances of the case.
    
23. In summary both the accused are sentenced to 2½ years imprisonment respectively as an aggregate sentence for both the offences which is suspended for 3 years. The effect of suspended sentence is explained to both the accused.
    
24. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma

Judge

At Lautoka
22 December, 2021

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for both the Accused.