State v A.Y.T [Juvenile] [2022] FJHC 105; HAC 129 of 2021 (25 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 129 of 2021

STATE

V

1. Y. T [Juvenile]
   

Counsel : Mr. J. Nasa for the State.

: Ms. G. Henao for the Juvenile.

Mr. N.N. Wara for and on behalf of the Social Welfare Department.

Date of Submissions : 10 February, 2022
Date of Hearing : 10 February, 2022
Date of Punishment : 25 February, 2022

PUNISHMENT

(The name of the Juvenile is suppressed he will be referred to as “A.Y. T”)

1. The juvenile is charged by virtue of the following information filed by the

Director of Public Prosecutions dated 21^st December, 2021:

FIRST COUNT

Statement of offence

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

Particulars of Offence

A.Y.T with others, between the 28^th day of October, 2021 and the 29^th day of October, 2021 at Main Street, Tavua in the Western Division, entered the SUPER CREAMER FAST FOOD RESTAURANT, 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

A.Y.T with others, between the 28^th day of October, 2021 and the 29^th day of October, 2021 at Main Street, Tavua Town in the Western Division, dishonestly appropriated (stole) the following items:

a) 1 carton of biscuits which contains 24 packets;

b) 2x bags of chicken which contains 8 x 2.0 kg;

c) 2x bags of chicken which contains 8 x 1.9 kg;

d) 6x packets of 1 kg sugar;

e) 1 carton of small twisties;

f) 6x packs of toilet paper;

g) 4x tins of coffee;

h) 2x packets of powdered milk;

i) 38x bottles of 2 liter coke;

j) $35.00 worth of loose coins.

2. On 23^rd December, 2021 the juvenile in the presence of his counsel pleaded guilty to both counts. Thereafter on 25^th January, 2022 the juvenile admitted the summary of facts read.
   

3. The summary of facts is as follows:

On 28^th October, 2021 at about 7pm, PW1 securely closed her restaurant and went home. At about 6am the next day, PW1 received a call from her husband informing her that her restaurant had been broken into and the following items were missing:

- 1x carton of biscuits worth $31.48;
- 2x bags of number 20 chicken valued at $253.36;
- 2x bags of number 19 chicken valued at $248.02;
- 6x packets of 1kg sugar valued at $12.00;
- 1x carton of small twisties valued at $21.80;
- 6x packs of toilet paper valued at $18.00;
- 2x packets of powdered milk valued at $13.20;
- 38x bottles of 2 litre coke valued at $180.00;
- $35.00 worth of loose coins.

All to the value of $544.86.

The matter was reported to Police, investigations were carried out and Police managed to arrest the juvenile.

The juvenile was then interviewed under caution wherein he admitted that he went with his accomplices and they used pinch bar which he brought from home to enter PW1’s restaurant (Q&A 41 – 44). He confirmed that he and his accomplices took 1x carton of chicken, 1x carton of biscuit, 1x carton of coke and 1x carton of twisties (Q&A 46). He stated that he only took 1 carton of coke (Q&A 48). He also admitted that when they all shared the items with his accomplices, he only took 2 bottles of coke and 4 packets of biscuits (Q&A 53).

4. After considering the summary of facts read by the state counsel which was admitted by the juvenile and upon reading his caution interview this court is satisfied that the juvenile has entered an unequivocal plea of guilty on his freewill.
   
5. This court is also satisfied that the juvenile has fully understood the nature of the charges and the consequences of pleading guilty. The summary of facts admitted satisfies all the elements of the offences committed. The juvenile admitted committing the offences in the company of others.
   
6. In view of the above, this court finds the juvenile guilty as charged. Both counsel filed punishment and mitigating submissions for which this court is grateful.
   
7. The learned counsel for the juvenile presented the following mitigation and personal details:
   
   1. The juvenile was 16 years of age at the time;
   2. First and young offender in conflict with the law;
   100. Is a year 11 student;
   4. Resides with his parents and siblings;
   5. Co-operated with the police;
   6. Pleaded guilty at the earliest opportunity;
   7. Remorseful and apologizes for his actions;
   8. Seeks forgiveness from his parents;
   9. Promises not to reoffend.
      

TARIFF

8. The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.
   
9. The accepted tariff for this offence is a sentence between 18 months to 3 years imprisonment (see Leqavuni v. State, Criminae Appeal No. AAU 106 of 2014 (26 February, 2016).
   

10. For the offence of theft the maximum penalty is 10 years imprisonment.

11. The tariff for the offence of theft is settled. In Mikaele Ratusili v. Stare, Criminal Appeal no. HAAof 2012 (1 August, 2012) MadJ. set out the tariff foff for theft as follows:

(ii) any subsequent offence should attr penalty of at least 9 months.

(iii) Theft oeft 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

12. The following aggravating factors are obvious:
    
    1. Property Invasion

The juvenile did not have any regard for the property rights of the owner. The offence was committed in the central business division of Tavua Town during the early part of the evening. He was bold and undeterred in what he did in the company of two others.

2. Planning

There is some degree of planning involved the juvenile had brought a pinch bar from his home which was used to enter the shop.

13. The juvenile falls under special categorization than adults when it comes to punishment under section 30(3) of the Juveniles Act as a young person which prescribes the maximum punishment for young persons at 2 years imprisonment.

SOCIAL WELFARE REPORT

14. As per the order of this court the Social Welfare Department prepared a pre-punishment report for the juvenile. According to the Social Welfare Officer who had interviewed the juvenile and his parents the officer is of the view that the juvenile should be given a second chance in life and be allowed to complete his education. The officer recommends the following:
    1. Probation officer be appointed to assist the juvenile in rehabilitation;
    2. Juvenile to attend counseling with his church and to attend youth activities of the church.

FAMILY VIEW/SUPPORT

15. From the report prepared by the Social Welfare Officer it is noted that the juvenile comes from a respected family and he has good family support as well. The family is affected by the incidents since the juvenile is an obedient and a helpful child. The parents of the juvenile in court accepted responsibility and they apologized for the actions of their son. The parents assured the court that they will ensure that their son does not get in conflict with the law again. As part of their commitment both parents have agreed to pay compensation to the victim in the sum of $200.00 and be bonded in respect of the good behaviour of their son by signing a bond of $350.00 each.
    
16. It is obvious to me from the pre-punishment report that the juvenile is regretting what he did and I am sure this experience was an eye opener for him. The juvenile is also keen to complete his education and he wishes to be an army officer.
    

DETERMINATION

17. 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.”

18. Taking into account section 17 of the Sentencing and Penalties Act I

prefer to impose an aggregate punishment for both counts.

19. Considering the objective seriousness of the offences committed I select

18 months imprisonment (lower range of the tariff) as the aggregate punishment for both counts. The punishment is increased for the aggravating factors, but reduced for mitigation and early guilty plea. The juvenile has not been in remand for this matter hence no further reduction is given.

20. The final aggregate punishment for both counts 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.
    
21. In State vs. Alipate Sorlagnalagi and others, Revis Case No. HAR 006

of 2012 (31 May 2012), Goundar J. reiterated the the following guidelines in respect of suion of a sentence at paragraph 23:

“[220;[23] In DPP v Jolame Pita (1904) 2 5, Grant 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 imnmentpropriate. In that case, Grant Actg. CJ was conceconcerned rned 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."

22. 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.

23. The juvenile is a young person as per the Juvenict (16 years of age

at the time of the offending), of good character, isolatedlated offences were committed by him, he has pleaded guilty at the earliest opportunity, is remorseful, cooperated with police and he takes full responsibility of his actions. These special reasons render an immediate imprisonment term inappropriate.

I am sure the juvenile with parental guidance, supervision and suppos a bright future ahead of him hence an imprisonment term werm will not augur well for him. In view of the above, this court has taken into account rehabilitation over and above deterrence. Section 30 (3) of the Juveniles Act also imposes a limit on the punishment of young persons.

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 this case.

26. In summary the juvenile is given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for both counts which is suspended for 3 years. The effect of the suspended sentence is explained to the juvenile. The following orders are to take effect immediately.

ORDERS

1. The juvenile is given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for the two counts mentioned in the information which is suspended for 3 years with immediate effect;
   
2. The parents of the juvenile are to sign a good behaviour bond on behalf of the juvenile in the sum of $350.00 each. Furthermore, the parents of the juvenile are to pay the sum of $200.00 as compensation to the victim within 21 days from today payable at Tavua Magistrate’s Court;
   

100. The Social Welfare Department, is to immediately arrange for the appointment of a Probation Officer and arrange for the counseling of the juvenile in the presence of his parents with the view of assisting him 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 the juvenile;
   
5. It is the responsibility of the parents of the juvenile to ensure that the juvenile obeys any directions given by the Social Welfare Department;
   
6. A copy of this punishment is to be served on the Officer in Charge of the Social Welfare Department, Tavua;
   
7. 30 days to appeal to the Court of Appeal.
   

Sunil Sharma

Judge

At Lautoka
25 February, 2022

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