State v Ramasi [2022] FJHC 185; HAC296.2021 (14 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 296 of 2021

STATE

.vs.

1. APARAMA RAMASI
2. WATISONI TABUA
3. EMOSI SOROVANALAGI
   

Counsels: Ms. Ali N - for Prosecution

Mr. Navuni W - for 1^st Accused Mr. Varinava T - for 2^nd Accused

Mr. Skiba K - for 3^rd Accused

Date of Sentence hearing: 08.04.2022
Date of Sentence: 14.04.2022

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SENTENCE

1. APARAMA RAMASI, WATISONI TABUA and EMOSIVANALAGI you were were jointly charged on the following information with two counts of Aggravated Burglary and two counts of Theft, as below:
   

COUNT 1

Statement of Offence

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

Particulars of Offence

Aparama Ramasi, Watisoni Tabua and Emosi Sorovanalagi on the 6^th day of December 2021, at Ambamma Street, Vatuwaqa, in the Central Division, in the company of each other, entered as trespassers into the Warehouse of Panda Investments PTE Limited with intent to commit theft therein.

COUNT 2

Statement of Offence

THEFT: Contrary to Section 29 o/b> of the Crimes Act 2009.

Particulars of Offence

Aparama Ramasi, Watisoni Tabua and Emosi Sorovanalagi, on the 6^th day of December, 2021, at Ambamma Street, Vatuwaqa in the central Division, in the company of each other, dishonestly appropriated (stole) assorted Biz Collection brand Caps, Ladies Tops, Men’s t-Shirts, Kids vests and Kids t-shirts, the property of PANDA INVESTMENTS PTY LIMITED, with the intention of permanently depriving PANDA INVESTMENTS PTY LIMITED of the said property.

COUNT 3

Statement of Offence

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

Particulars of Offence

Aparama Ramasi, Watisoni Tabua and Emosi Sorovanalagi on the 7^th day of December 2021, at Ambamma Stret, Vatuwaqa in the Central Division, in the company of each other, entered as trespassers into the Warehouse of PANDA INVESTMENTS PTY LIMITED with intent to commit theft therein.

COUNT 4

Statement of Offence

THEFT: Contrary tSection 291 o/b> of the Crimes Act 2009.

Particulars of Offence

Aparama Ramasi, Watisoni Tabua and Emosi Sorovanalagi on the 7^th day of December, 2021 at Ambala Street, Vatuwaqa in the Central Division, in the company of each other, dishonestly appropriated (stole) assorted Biz Collection brand Caps, Ladies Tops, Men’s t-Shirts, Kids vests and Kids t-shirts, the property of PANDA INVESTMENTS PTY LIMITED, with the intention of permanently depriving PANDA INVESTMENTS PTY LIMITED of the said property.

3. Three of you pleaded guilty on your own free will to the above mentioned counts represented by counsel in Court on 11/03/2022. You understood the consequences of the guilty plea for offences you have committed. This Court was satisfied that the guilty pleas are informed and unequivocal and entered freely and voluntarily by the three of you.
   
4. You agreed to the following summary of facts, when they were read to you in Court on 05/04/2022. This Court was convinced that the facts agreed by you satisfy all the elements of each offence you are charged with. You were found guilty on each count as charged.
   
5. The summary of facts are, as follows:
   • The complainant, Anil Prasad, is a businessman and owns the company Panda Investment PTE Limited. The complainant’s company’s Warehouse is situated at Ambamma Street, Vatuwaqa.
     
   • There is no relationship between the complainant and the accused persons in this matter,
     
   • On the 9^th day of November 2022 at around 02.00pm, the complainant went to his Warehouse at Amabamma Plae, karsanji Street Vatuwaqa, to check his business stock. After checking the business stocks the complainant travelled to Labasa. The complained stayed one month in Labasa and has returned to Suva on 9^th day of December, 2021.
     
   • On the 9^th day of December 2021, after the complainant returned to Suva, at around 11am, the complainant went to check the business stock at his Warehouse at Amabamma Street, Vatuwaqa. Upon arriving at the warehouse he discovered that everything inside the warehouse was scattered and all the things had been re-arranged in which few cartons that were piled on top was open. According to eh complaint, he saw Beer Collection Cartons which contained the hats, ladies tops, men’s t-shirt, men’s vest, kid’s vest and t-shirts were missing.
     
   • The complainant has stated that the total value of all the stolen items is $1,000.00. However, the complainant said that he does not know the actual number of clothes stolen from his warehouse. There was no forced entry into his warehouse.
     
   • The prosecution witness namely Laukesh Lal, 43 year old Businessman of Lot 9, Soqe Place, Nadera owns the company namely Macro Tech Glass and Aluminum Ltd, which is situated at Ambamma Place, Karsanji Street, Vatuwaqa. Laukesh Lal’s warehouse is adjacent to the complainant’s warehouse at Ambamma Street, Vatuwaqa. Laukesh Lal has installed CCTV cameras inside and outside his warehouse. The CCTV camera also monitors the complainant’s Warehouse.
     
   • Laukesh Lal viewed the CCTV footage on the 12^th day of December, 2021, in which he saw the incidents of 6^th day of December, 2021 and 7^th day of December 2021. The CCTV footage shows the accused person who were the employees of Laukesh Lal, and had been working at the Macro Tech Glass and Aluminum Warehouse, at Ambamma Place, Karsanji Street, Vatuwaqa.
     
   • Laukesh Lal confirmed that those people shown in the CCTV footage were the accused persons namely Aparama Ramasi, Watisoni Tabua and Emosi Sorovanalagi. He said these accused were his employees and theuy were involved in stealing the complainant’s items inside the warehouse.
     
   • The witness Laukesh Lal identified the accused Aparama Ramasi wearing black and white t-shirt with “Fiji” written at the back of the t-shirt and ¾ blue jeans. The Accused Watisoni Tabua was wearing a blue t-shirt and ¾ blue jeans, the accused Emosi Sorovanalagi was wearing grey t-shirt and brown ¾ short pants. (Attached and marked A is Laukesh Lal’s statement.
     
   • The complainant went and lodged a report at the Nabua Police Station. The accused persons were arrested by a/DSGT 4701 Jekope Nakula on the 11^th December, 2021 and were brought to the Nabua Police Station.
     

Recoveries

The following items were recovered by the Police from the accused persons,

Aparama Ramasi’s house on the 12^th December, 2021.

• 1 x light blue t-shirt
• 1 x Dark blue t-shirt
• 2 x white t-shirt
• 2 x Pink caps.
  

The following items were recovered by Police from the accused persons Watisoni Tabua’s house on the 12^th December, 2021.

• 5 x Biz collection brand round neck t-shirts (black and red colour)
• 2 x Biz collection brand Blue coloured t-shirts.
  

The following items were recovered by the Police from the accused person’s Emosi Sorovanalagi’s house on the 12^th December 2021.

• 1 x Biz collection black and red colour t-shirts)
• 1x Biz collection blue cap.
  

6. At the very outset, in considering these summary of facts and the submission made by the prosecution in aggravation and your counsel in mitigation, this Court convicts you for the offences charged by the information in this matter.
   
7. In comprehending the gravity of the offences you have committed, I am mindful that the maximum punishment for the offence of Aggravated Burglary under Section 313 (1) (a) of the Crimes Act of 2009 is an imprisonment term of 17 years and the maximum punishment for Theft under Section 291 of the Crimes Act 2009 is an imprisonment term of 10 years.
   
8. The accepted tariff for counts 1, 2, 3 and 4 depend on the nature and circumstances under which Aggravated Burglary and Theft were committed, and the consequences entailing the commission of the offences to the victims and the society in general.
   
9. This Court also recognizes that to address the head spinning rapidity of the increasing of Burglaries and Robberies in our community, any punishment imposed by Court should have a reprehensible deterrent effect that could also send a profoundly strong signal to the community.
   
10. In imposing the appropriate punishment for your admitted guilt, this Court intends to follow the tariff regime pronounces for Aggravated Burglary in the case of State v Seninawanawa [2015] FJHC548 925 June 2018), where Midigan J stated:

“The accepted tariff for aggravated burglary is a sentence of between 18 months and three years, with three years being the standard sentence for burglary of domestic premises.”

11. This tariff has been followed in several decided cases, i.e., State v. Tavualevu[2FJHC 246; HAC 43.2013 (16 May 2013); State v. Drose< [2017] FJHC 205; HAC 325.2015 (28 ary 2 State&#160 v. R;v. Rasegamp; Another [2018] FJHC 364; HAC 101.2018 (7 May 2018) and State v. Mudu/b> [2020] FJHC 609; HAC 11AC 116.2020 (30 JULY 2020).
    
12. In relation to the offence of Theft, this Court intends to follow the tariffs pronounced by Midigan J in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1^st August 20120. Where he states:

“From the cases then the following sentencing principles are established:

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent 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.

Although the higher tariff is apposite for breach of trust thefts of large amounts of money, thefts of sums of money from an employer by way of fraud that come within the Barrick 81 CrApp 78 guidelines, as , as developed by this Court in Anand Kurasad and orsd ors [2011[2011] FJH] FJHC 218.”

In this matter, in considering the value of the items you had stolen and that it was stolen from the warehouse of a business establishment, this cannot be regarded as simple theft.

14. Considering the circumstances of this case, Court sees that this is an appropriate case where an aggregate sentence could be imposed in terms of Section 17 of the Sentencing and Penalties Act 2009 in view that you were convicted on each count based on the same facts. Hence, I would impose an aggregate sentence for the three of you for Count 1, 2, 3 & 4. Three of you are similarly situated as far as the culpability level is concerned. Most of the property stolen has been discovered during police investigations.
    
15. In assessing the objective seriousness of offending of the three of you in this matter, I considered the maximum sentence prescribed for the offences, the degree of culpability, the manner in which you committed the offence and the harm caused to the complainant organization, which is in the nature of economic loss and the impact caused to the safety and security in operating a business. I gave due cognizance to the sentencing guidelines stipulated in Section 4 of the Sentencing and Penalties Act 2009. This is a Burglary that happened in warehouse of a business establishment. I am very mindful that offences of this nature disturbs the development of trade activities in our community, which brings revenue to our economy. In this regard, the Courts have a duty to discourage and deter this kind of anti-social behavior that makes conducting trade in our society unprofitable, discouraging potential entrepreneurs in venturing into trade activities. Having considered all these factors, I would pick a starting point of 24 months imprisonment against each of you.
    
16. In aggravation, prosecution highlights that you had pre-planned this offence and waited for an opportunity when the owner was out of town. Further, to avoid detection of your commission of this offence, you had blocked the surveillance cameras that were fixed in the premises. In considering these factors, this Court increases your sentence by another six (06) months.
    
17. In mitigation, your counsel has informed Court that you are first offenders and that you have maintained good characters before the involvement in this offence. However, I cannot grant your request to impose a non-custodial sentence in this case. I would like to highlight the sentiments of Nawana J in the case of StaTilalevu&#/b> [2e">[2010] FJHC 258; HAC081.2010 (20 Ju20 July 2010) where His Lordship said that;

“I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Sme'' - where people woulpt to coto commit serious offences, once in life, under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society rvaded with crimes. Court murt must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.”

18. If this Court is to give credence to this “Fist Offender” phenomena, Court will send a wrong signal to the citizenry of this Country, where Court would inform every citizen that they could commit a crime for the first time with minimum repercussions. We should remember that a crime is a crime, regardless whether it is the first crime of the offender or not. Human civilization has detested crime from the very inception, if I may say, “even when Adam was a very young boy”.
    
19. Further, your counsel has informed the court that you have entered an early guilty plea and that you regret your action on the day in question. You have also been supportive to the police during investigations after your arrest. However, court is speculative in considering the early admission of guilt by you as a mark of genuine remorse. Your involvement in the commission of this offense was caught in the CCTV footage and you were recognized by a prosecution witness who knew you. Court is compelled to view this early admission as somewhat of a damage control exercise that came at a time when you had no option but to admit to the commission of this offense. Nevertheless, pleading guilty to the charge you have saved courts time and resources at a very early stage of the court proceedings.
    
20. For all these grounds in mitigation, you should receive a discount in the sentence. In this regard, I give you a reduction of one third in your sentence.
    
21. The prosecution brings to the attention of this Court that you have been in custody since your arrest on 11/12/2021 for 41 days, until granting bail by Court. This period should be deducted from your sentence separately.
    
22. Aparama Ramasi, Watisoni Tabua and Emosi Sorovanalagi, I sentence you to 18 months and 20 days imprisonment, which should take effect forthwith.
    
23. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    >

.................................................
Hon. Justice Dr. Thushara Kumarage

At Suva
14^th April 2022

cc: Office of the Director of Public Prosecutions
Office of the Legal Aid Commission