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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 237 of 2020
STATE
V
1. AISAKE SENIKABOA
2. KILIMO VUETI
3. WAME NIUTAMATA
Counsel : Mr. Sahil Shiraz for the State
Ms. Lavinia David for the 1st, 2nd and 3rd Accused
Sentence Hearing : 9 December 2021
Sentence : 17 December 2021
SENTENCE
[1] Aisake Senikaboa, Kilimo Vueti and Wame Niutamata, as per the Amended Information filed by the Director of Public Prosecutions (DPP), the three of 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
AISAKE SENIKABOA, KILIMO VUETI and WAME NIUTAMATA, on the 3 day of August 2020, at Nausori, in the Eastern Division, entered into the dwelling house of AMIT PRASAD, 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
AISAKE SENIKABOA, KILIMO VUETI and WAME NIUTAMATA, on the 3 day of August 2020, at Nausori, in the Eastern Division, dishonestly appropriated 1 x Canon Black Jacket, assorted notes and coins worth $70.00, 1 x 2 litre Gordon’s Gin, 3 x 1 litre Gordon’s Gin, 1 x 1.25 litre Red Label Whisky, 2 x 1.25 litre Black Label Whisky, 1 x 1.25 Bombay Sapphire, 1 x 1.25 litre Dewar’s Gold Label, 1 x 1.25 litre Chevas Whisky, 1 x School bag colour pink, 1 x Black Targus laptop bag, 1 x shorts coloured light blue, the property of AMIT PRASAD with the intention of permanently depriving AMIT PRASAD of the said property.
COUNT 3
Statement of Offence
SERIOUS ASSAULT: Contrary to Section 277 (b) of the Crimes Act 2009.
Particulars of Offence
WAME NIUTAMATA, on the 4 day of August 2020, at Nausori, in the Eastern Division, resisted the lawful arrest and assaulted Detective Corporal 4509 MESULAME NARAWA, in due execution of his duty.
[2] The State filed the Information and Disclosures relevant to the matter in this case on 1 October 2020.
[3] When the charges were first put to you on 18 November 2020, you pleaded not guilty to all counts in the Information.
[4] Thereafter, on 5 October 2021, the State filed the Amended Information in this matter. Aisake and Kilimo, on 26 October 2021, you both took your pleas once again and pleaded guilty to the 1st and 2nd counts in the Amended Information. Court was satisfied that you both 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 guilty plea. The 3rd Accused was not present in Court on this day.
[5] Thereafter, Court was informed that even the 3rd Accused wishes to take a progressive approach in the matter.
[6] Accordingly, on 23 November 2021, the charges were put to all three of you once again. Aisake, Kilimo and Wame, the three of you pleaded guilty to the 1st and 2nd counts in the Amended Information. Court was satisfied that you both 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 guilty plea.
[7] However, Wame you maintained a not guilty plea in respect of Count 3.
[8] On the same day, the State filed the Summary of Facts. The Summary of Facts were read out to you and the three of 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 1st and 2nd counts in the Amended Information, and found the two counts proved on the Summary of Facts agreed by you. Accordingly, I found the three of you guilty on your own pleas and I convicted each of you of the 1st and 2nd counts as charged.
[9] I now proceed to pass sentence on you.
[10] The Summary of Facts filed by the State was as follows:
Accused 1 is Aisake Senikaboa, (DOB 17/03/1994), 27 years of age, unemployed of Vuni-chaina Settlement, Tacirua.
Accused 2 is Kilimo Vueti, (DOB 06/02/1998), 23 years of age, unemployed of Naqeledamu Village.
Accused 3 is Wame Niutamata, (DOB 12/04/1999), 22 years of age, unemployed of Vunivivi Hill.
The complainant is Amit Prasad, 36 years of age, Network Administrator of Vuci South Road, Nausori.
The complainant and his wife reside at Vuci South Road in Nausori. On 3rd August 2020, the complainant had left for work to Suva around 5.55 a.m. in the morning and later around 8.00 a.m., his wife had left for work as well. Before leaving home, the complainant’s wife had securely locked all the doors and activated the closed circuit television (CCTV) as well.
During the day, around 12.40 p.m., the complainant had received a call from one of his neighbours informing him that the front door of the complainant’s house had been broken into by someone.
The complainant left work and reached home around 1.10 p.m. and the Police Officers were already present at his premises. The complainant then entered into his house and found that the front door glass was broken, the cabinet drawers in the house were open, all 3 bedrooms fully ransacked and the belongings were scattered all over the place. The complainant then discovered that the following items were stolen:-
The complainant then viewed the CCTV footage and handed it over to the Police in a controlled manner. In the CCTV footage, it is clearly shown that Aisake Senikaboa, Kilimo Vueti and Wame Niutamata had forcefully broken into the front door, entered into the house and escaped through the back door with the complainant’s items.
Jeetendra Prasad, taxi driver of Korociri Nausori is a witness to this matter. He was driving his taxi home for lunch when he had been stopped by Aisake Senikaboa, Kilimo Vueti and Wame Niutamata. The three accused persons told the taxi driver to transport them to various shops and Mini Mart as they were trying to sell the stolen bottles of liquor. Finally, the three accused persons had been dropped off at Nadave in Nausori.
On the 4th August 2020, Detective Corporal 4509 Mesulame Narawa had been informed that some boys were drinking alcohol in a vacant property in Manoca, Nausori. DC 4509 Mesulame Narawa and the station officers had then deployed to the vacant property whereby they saw 2 i-Taukei boys running. These 2 i-Taukei boys were Kilimo Vueti and Wame Niutamata. Kilimo Vueti had been arrested by Detective Constable 3730 Ropate Roberau and DC 4509 Mesulame Narawa arrested Wame Niutamata.
Kilimo Vueti and Wame Niutamata had been arrested in Manoca, Nausori on 4th August 2020 and Aisake Senikaboa had been arrested from his house on 6th August 2020. Only the Black Targus Laptop Bag had been recovered.
The Second Accused, Kilimo Vueti has admitted to the offence in his caution interview from Q & A 36 – 84. (Marked as annexure “B” is the copy of Record of Interview for The Second Accused).
Aisake Senikaboa, Kilimo Vueti and Wame Niutamata were then charged with one count each of Aggravated Burglary and Theft. Aisake Senikaboa has a history of previous convictions, Kilimo Vueti has known but nil previous convictions and Wame Niutamata has a history of previous convictions as well. (Marked as Annexure “C” is the Criminal Record History by the Criminal Records & Fingerprint Office).
[11] Aisake, Kilimo and Wame, you both have admitted to the above Summary of Facts and taken full responsibility for your actions.
[12] 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.
[13] I have duly considered the above factors in determining the sentence to be imposed on you.
[14] 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.
[15] 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).
[16] 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.
[17] 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); State v. (Rupeni) Lilo [2020] FJHC 401; HAC225.2018 (9 June 2020); State v. (Taniela) Tabuakula [2020] FJHC 464; HAC106.2020 (23 June 2020); State v. (Eric Male) Robarobalevu [2020] FJHC 630; HAC102.2020 (6 August 2020); State v. (Usaia) Delai [2020] FJHC 631; HAC7.2020 (6 August 2020); State v Vakawaletabua [2020] FJHC 645; HAC441.2018 (11 August 2020); State v. (Sakeasi) Seru and Another [2020] FJHC 770; HAC136.2020 (18 September 2020); State v. (Kunal Edwin) Prasad [2020] FJHC 785; HAC115.2020 (23 September 2020); State v. (Emosi) Tabuasei [2020] FJHC 994; HAC131.2020 (27 November 2020); and State v. LR and Others [2020] FJHC 993; HAC133.2020 (27 November 2020); State v. Lal and Another [2020] FJHC 1024; HAC337.2019 (3 December 2020); State v. Koroitawamudu and Another [2020] FJHC 1055; HAC127.2020 (8 December 2020); State v. Koroi and Another [2020] FJHC 1065; HAC270.2020 (10 December 2020); State v. (Joji) Kotobalavu [2021] FJHC 101; HAC234.2020 (17 February 2021); State v. Nabou Junior [2021] FJHC 172; HAC277.2020 (22 March 2021); State v. Lutunamaravu & Others [2021] FJHC 191; HAC192.2020 (23 March 2021); State v. (Aminiasi) Vakalala & Another [2021] FJHC 195; HAC325.2020 (25 March 2021); State v. Lal [2021] FJHC 247; HAC337.2019 (5 October 2021); and State v. Kaibalauma and Another [2021] FJHC 349; HAC59.2021 (1 December 2021).
[18] 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.
[19] 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 ofy and thefts in breach of trust, whether first offence or not can attract sentences of up t 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.”
[20] Since the theft in this case involved property of a high value, and was consequent to the three of you entering the residential premises of the complainant as trespassers, 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.
[21] 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.”
[22] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Aisake, Kilimo and Wame, I commence your sentences at 18 months imprisonment for the first count of Aggravated Burglary.
[23] Similarly, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Aisake, Kilimo and Wame, I commence your sentences at 6 months imprisonment for the second count of Theft.
[24] The aggravating factors are as follows:
(i) The frequent prevalence of these offences in our society today.
(ii) The three of you trespassed into the residential premises of the complainant in broad daylight, thereby paying scant regard to the privacy of the complainant and you have also totally disregarded his property rights.
(iii) I find that there was some amount of pre-planning or pre-meditation by the three of you in committing these offences.
(iv) You are now convicted of multiple offending.
[25] Considering the aforementioned aggravating factors, Aisake, Kilimo and Wame I increase your sentences by a further 4 years. Now your sentence for count one would be 5 years and 6 months imprisonment. Your sentences for count two would be 4 years and 6 months imprisonment.
[26] Kilimo, I accept that you are a person of previous good character. Unfortunately, Aisake and Wame there are previous convictions recorded against you for property related offences. Therefore, you cannot be considered of previous good character. However, Aisake, Kilimo and Wame, I accept that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and the fact that you are seeking leniency from Court.
[27] Accordingly, considering these mitigating factors, Kilimo I deduct 3 years from your sentences. Now your sentences for count one would be 2 years and 6 months imprisonment. Your sentences for count two would be 1 year and 6 months imprisonment.
[28] Accordingly, considering these mitigating factors, Aisake and Wame I deduct 2 years from your sentences. Now your sentences for count one would be 3 years and 6 months imprisonment. Your sentences for count two would be 2 years and 6 months imprisonment.
[29] Aisake, Kilimo and Wame, I accept that you have entered a guilty during the course of these proceedings, although you initially pleaded not guilty to the charges. Nevertheless, in doing so, you saved precious time and resources of this Court. For your 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.
[30] In the circumstances, Kilimo your sentences are as follows:
Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-1 year and 6 months imprisonment.
Count 2- Theft contrary to Section 291 (1) of the Crimes Act –1 year and 6 months imprisonment.
I order that both sentences of imprisonment to run concurrently. Therefore, your final total term will be 1 year and 6 months imprisonment.
[31] In the circumstances, Aisake and Wame your sentences are as follows:
Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-2 years and 6 months imprisonment.
Count 2- Theft contrary to Section 291 (1) of the Crimes Act –2 years and 6 months imprisonment.
I order that both sentences of imprisonment to run concurrently. Therefore, your final total term will be 2 years and 6 months imprisonment.
[32] Aisake, you are now 27 years of age (your date of birth being 17 March 1994). Prior to being remanded for this case, you were residing at Tacirua in Nasinu. You are said to be in a de-facto relationship and have a 6 year old daughter. You were previously employed as a casual construction worker earning $180 weekly.
[33] Kilimo, you are now 23 years of age (your date of birth being 6 February 1998). Prior to being remanded for this case, you were residing at Tailevu. You are said to be in a de-facto relationship and have a child. You were engaged in farming earning $30 per week. It is said that you had a difficult upbringing and was raised by your mother since your father had left the family. Thus you had moved between family members.
[34] Wame, you are now 22 years of age (your date of birth being 12 April 1999). Prior to being remanded for this case, you were residing at Vunivivi in Nausori, with your grandmother as both your parents had passed away. You were previously employed as a baker earning $130 weekly.
[35] Kilimo you were arrested for this case on 4 August 2020 and have been remanded in custody since that day. That is a period of over 16 months. Accordingly, considering your young age and other personal circumstances, it is my opinion that the chances for your rehabilitation is high. Therefore, in terms Section 26 of the Sentencing and Penalties Act I deem it appropriate to suspend your sentences.
[36] 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 sentences for a period of 5 years. Accordingly, your sentence of 1 year and 6 months imprisonment is suspended for 5 years.
[37] Aisake and Wame, I sentence you to a term of be 2 years and 6 months imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that you are not eligible to be released on parole until you serve 2 years of that sentence.
[38] Section 24 of the Sentencing and Penalties Act reads thus:
“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”
[39] Aisake, you had been arrested for this case on 6 August 2020 and have been remanded in custody since that day. Accordingly, you have been in custody for a period of over 16 months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that the period of 16 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.
[40] In the result, Aisake, your final sentence is as follows:
Head Sentence - 2 years and 6 months imprisonment.
Non-parole period - 2 years’ imprisonment.
Considering the time you have spent in remand, the time remaining to be served is as follows:
Head Sentence - 1 year and 2 months imprisonment.
Non-parole period - 8 months imprisonment.
[41] Wame, you had been arrested for this case on 4 August 2020 and have been remanded in custody. Thereafter, you had been sentenced by the Nausori Magistrate’s Court to a sentence of imprisonment which you served from 1 March 2021 to 8 June 2021. Thereafter, you had been released by the Nasinu Corrections Centre. You were arrested on a bench warrant and produced in Court for this case on 9 November 2021.
[42] Accordingly, I consider that you have been in custody for a period of over 6 months for this case. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that the period of 6 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.
[43] In the result, Wame, your final sentence is as follows:
Head Sentence - 2 years and 6 months imprisonment.
Non-parole period - 2 years’ imprisonment.
Considering the time you have spent in remand, the time remaining to be served is as follows:
Head Sentence - 2 years imprisonment.
Non-parole period - 1 year 6 months imprisonment.
[44] 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 17th Day of December 2021
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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