State v Ratulevu - Sentence [2022] FJHC 186; HAC10.2021 (21 April 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 10 of 2021

STATE

V

1. INOSA RATULEVU [Accused]
2. L. L [Juvenile]
3. JOELI NABANISAU [Accused]
4. VILIKESA SAYABO [Accused]
5. SIKELI VAKALOLOMA [Accused]
6. ULAIASI TAMANISAU [Accused]
   

Counsel : Mr. A. Singh for the State.

: Ms. K. Vulimainadave for all the Accused and the Juvenile.

Date of Submissions : 21 April, 2022
Date of Punishment/Sentence : 21 April, 2022

PUNISHMENT/SENTENCE

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

1. All the accused persons and the juvenile are charged by virtue of the following information filed by the Director of Public Prosecutions dated 26^th April, 2021:
   

FIRST COUNT

Statement of offence

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

Particulars of Offence

INOSA RATULEVU, L.L, JOELI NABANISAU, VILIKESA SAYABO between the 25^th day of December, 2020 and the 3^rd day of January 2021, at Lautoka in the Western Division, entered as trespassers into the house of JUBBAR POKAR with intent to commit theft from the said property.

SECOND COUNT

Statement of offence

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

Particulars of Offence

INOSA RATULEVU, L.L, JOELI NABANISAU, VILIKESA SAYABO between the 25^th day of December, 2020 and the 3^rd day of January 2021, at Lautoka in the Western Division, dishonestly appropriated (stole):

1. 1 x Hisense Refrigerator;
2. 1 x Haier Automatic washing machine;

100. 1 x LG flat screen TV;

4. 1 x double bed;
5. 1 x double mat mattress;
6. 1 x Audiosonic DVD player;
7. 1 x Contempo microwave oven;
8. 1 x Makita circular saw;
9. 1 x Atec drilling machine;
10. 3 x cutting pliers;
11. 1 x straw mat;

50. 1 x iron;

13. 2 x blankets;
14. 2 x tarpaulin the said properties of JUBBAR POKAR with the intention of permanently depriving the said JUBBAR POKAR.
    

THIRD COUNT

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

Particulars of Offence

SIKELI VAKALOLOMA & ULAIASI TAMANISAU between the 25^th day of December, 2020 and the 3^rd day of January 2021, at Lautoka in the Western Division, entered as trespassers into the house of JUBBAR POKAR with intent to commit theft from the said property.

FOURTH COUNT

Statement of offence

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

Particulars of Offence

SIKELI VAKALOLOMA & ULAIASI TAMANISAU between the 25^th day of December, 2020 and the 3^rd day of January 2021, at Lautoka in the Western Division, dishonestly appropriated (stole):

1. 1 x punching bag;
2. 1 x punching gloves the said properties of JUBBAR POKAR with the intention of permanently depriving the said JUBBAR POKAR.
   

2. On 24^th February, 2022, 10^th March, 2022 and 25^th March, 2022 the accused persons and the juvenile pleaded guilty to the above counts in the presence of their counsel. Thereafter on 31^st March, 2022 all the accused persons and the juvenile admitted the summary of facts read in the presence of their counsel.
   
3. The brief facts were as follows:
   
   1. Mr Mohammed Fahim, 54 years, Bailiff of Lomolomo, Lautoka was the caretaker of the property owned by his uncle namely Mr Jubbar Pokar of Sydney, Australia. Due to travel restrictions Mr Jubbar Pokar was unable to travel to Fiji.
      
   2. On 25^th of December, 2020 at Lomolomo, Lautoka, Mr Fahim had securely locked the house and only returned on 3^rd of January, 2021 about 1.30 pm, to discover that the door of the bedroom was broken and entry was made inside the house. Upon inspection he discovered the followed items to have been stolen:
      
      1. 1 x Hisense Refrigerator valued at $900.00;
      2. 1 x Hailer Automatic washing machine valued at $1000.00;
      100. 1 x LG flat screen TV valued at $1,500.00;
      4. 1 x double bed valued at $350.00;
      5. 1 x double bed mattress valued at $120.00;
      6. 1 x Audiosonic DVD player valued at $150.00;
      7. 1 x Contempo microwave oven valued at $120.00;
      8. 1 x Makita circular saw valued at $80.00;
      9. 1 x Atec drilling machine valued at $80.00;
      10. 3 x cutting pliers valued at $45.00;
      11. 1 x straw mat valued at $12.00;
      50. 1 x iron valued at $100.00;
      13. 2 x blankets valued at $50.00;
      14. 2 x tarpaulin valued at $200.00.
          
   3. Matter was reported to Police. Police attended to the report and received information that one Viliame Kuru (A.2), domestic duties of Lomolomo village was keeping the above mentioned stolen items at her house. Upon questioning A.2 it was discovered that the following persons have left the items in exchange of 3 cartons Joskies drink (alcohol). They are as follows:
      
      1. Inosa Ratulevu (hereafter referred to a B-1), 23 years, unemployed of Lomolomo village, Lautoka.
      2. L.L (hereafter referred to as Juvenile), 16 years, student of Lomolomo village, Lautoka.
      100. Joeli Nabanisau (hereafter referred to as B-2), 20 years, unemployed of Lomolomo village, Lautoka.
      4. Vilikesa Sayabo (hereafter referred to as B-3), 20 years, unemployed of Lomolomo village, Lautoka.
         
   4. It was further established that whilst B-1, Juvenile, B-2 & B-3 were drinking alcohol they were joined by Sikeli Vakaloloma (hereafter referred to as B-4), 25 years, plaster man of Lomolomo village, Lautoka and Ulaiasi Tamanisau (hereafter referred to as B-5), 25 years, unemployed of Lomolomo village, Lautoka. During the conversation, B-1, juvenile & B-2 informed B-4 and B-5 that they broke into the house of Jubbar Pokar and stole assorted household items. After the drinks had finished B-1, juvenile, B-2 & B-3 went to their respective homes.
      
   5. B-4 and B-5 then decided to enter the house of Jubbar Pokar and stole 1 x punching bag valued at $150.00 and 1 x punching gloves valued at $100.00. The two items were taken by B-6 to his house.
      
   6. The five accused persons together with the juvenile were arrested and taken in for questioning. They all admitted to committing the offence in their Record of Interview.
      
   7. All items stolen have been recovered and are in the custody of Police at Lautoka Police Station.
      
4. After considering the summary of facts read by the state counsel which was admitted by all the accused persons and the juvenile and upon reading their caution interviews this court is satisfied that all the accused persons and the juvenile have entered an unequivocal plea of guilty on their own freewill.
   
5. This court is also satisfied that all the accused and the juvenile have fully understood the nature of the charges and the consequences of pleading guilty. The summary of facts admitted satisfies all the elements of the offence of aggravated burglary and theft which all the accused and the juvenile admitted committing in the company of each other.
   
6. In view of the above, this court finds all the accused guilty and they are convicted as charged. In respect of the juvenile this court finds him guilty as charged. Both counsel filed sentence and mitigating submissions for which this court is grateful.
   
7. The learned counsel for all the accused and the juvenile presented the following mitigation and personal details:
   

Accused One – Inosa Ratulevu

1. He was 24 years at the time of the offending;
2. Is a Farmer;

100. Pleaded guilty at the earliest opportunity;

4. Cooperated with the police during investigations;
5. All the stolen items were recovered;
6. Seeks forgiveness from the court and the victim;
7. Promises not to reoffend.

Juvenile- L.L

1. He was 16 years at the time;
2. Currently year 13 student;

100. First and young offender;

4. Is a person of good character;
5. Has pleaded guilty at the earliest opportunity;
6. Cooperated with the police during investigations;
7. All the stolen items were recovered;
8. Seeking forgiveness from the victim and the court;
9. Promises not to reoffend;
10. As per the letter from the juvenile’s mother the juvenile has received counseling and his year 12 marks have been good.

Accused Two – Joeli Nabanisau

1. He was 20 years of age at the time of the offending;
2. Plaster man and Farmer by profession;

100. First offender;

4. Cooperated with the police during investigation;
5. Full recovery of the stolen items;
6. Pleaded guilty at the earliest opportunity;
7. Seeks forgiveness from the court and the victim;
8. Promises not to reoffend.

Accused Three – Vilikesa Sayabo

1. He was 20 years of age at the time of the offending;
2. Is a Farmer;

100. First offender;

4. Cooperated with the police during investigation;
5. Full recovery of the stolen items;
6. Pleaded guilty at the earliest opportunity;
7. Seeks forgiveness from the court and the victim;
8. Promises not to reoffend.

Accused Four – Sikeli Vakaloloma

1. He was 25 years of age at the time of the offending;
2. First offender;

100. Married with 2 children;

4. Is a Carpenter by profession;
5. Earns $120.00 per week;
6. Cooperated with the police during investigation;
7. Full recovery of the stolen items;
8. Pleaded guilty at the earliest opportunity;
9. Seeks forgiveness from the court and the victim;
10. Promises not to reoffend.

Accused Five – Ulaiasi Tamanisau

1. He was 25 years of age at the time of the offending;
2. Married with three children;

100. Is a Joiner by profession;

4. First offender;
5. Cooperated with the police during investigation;
6. Full recovery of the stolen items;
7. Pleaded guilty at the earliest opportunity;
8. Seeks forgiveness from the court and the victim;
9. Promises not to reoffend.

REASONS FOR THE OFFENDING

The juvenile and the accused persons understand the seriousness of the offending and it is obvious to me that it was peer group influence that led to the commission of the offences and poor judgment on their part.

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, Criminal Appeal No. AAU 106 of 2014 (26 February, 2016).
   
10. For the offence of theft the maximum penalt10 years imprisonment.&#160
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11. The tariff for the offence of theft is settled. In Mikaele Ratuv. State, Cre, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the t foff for theft as follows:
    >

“(i) ;(i) For the first offence of e theft the sentencing rang range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty ofeast 9 months.

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(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.”

12. AGGRAVATING FACTORS

The following aggravating factors are obvious:

1. Property Invasion

All the accused persons and the juvenile did not have any regard for the property rights of the owner. They entered the property without any second thoughts and were engaged in an activity which showed their boldness to achieve an unlawful purpose.

2. Planning

There is a degree of planning involved the accused persons and the juvenile had planned what they wanted to do and they knew what they were doing. They were undeterred in what they had set out to achieve.

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.
14. For this case two different sentencing and punishment regime applies hence the punishment for the juvenile will be considered separately from the accused persons.

PUNISHMENT – L.L

SOCIAL WELFARE REPORT

15. By the time the juvenile was arraigned by this court he had attained the age of 18 years hence there was no need for any social welfare report to the ordered.

DETERMINATION
16. 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.”

17. Taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate punishment for the four offences mentioned in the information. Counts one and two relate to Accused one, two, three and the juvenile whereas counts three and four relate to accused five and six.
    

PUNISHMENT FOR THE JUVENILE

18. 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 committed by the juvenile. The punishment is increased for the aggravating factors but reduced for the early guilty plea, mitigation and police custody.
    
19. 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.
    
    20. In State vs.ate Sorovanalagnalagi and others, Revisional Case No. HAR 006 of 2012 (31 May 2012), Go J. reiterated the followinlowing guidelines in respect of suspension of a sentence at paragraph 23:
        

“[23] In DPP v Jolame Pita&#1974) 204) 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."

21. 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.
    
22. The juvenile is a young person as per the Juveniles Act, he is of good character, isolated offences were committed by he was 16 years of age at e at the time of the offending, pleaded guilty at the earliest opportunity, is genuinely remorseful, cooperated with police leading to full recovery of stolen items and he takes full responsibility of his actions. These special reasons render immediate imprisonment inappropriate.
    
I am sure the juvenile with parental and family guidance, supervision and support has a bright future aheahim hence an imprisonment tent term will not augur well for his future, the juvenile has been in police custody which is in itself an adequate and appropriate punishment, an experience that will remind him to keep away from conflict with the law. This court has taken into account rehabilitation over and above retribution.

24. 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.
    
25. The only reason why the punishment is lenient is because the Juveniles Act imposes a limit on the punishment of young persons.
    

ORDERS

26. 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. The effect of suspended sentence will be explained to the juvenile.
    

SENTENCE – ALL THE ACCUSED PERSONS

27. Considering the objective seriousness of the offending, I select 18 months imprisonment (lower range of the tariff) as the aggregate sentence for both the offences which apply to the accused persons respectively. The sentence is increased for the aggravating factors but reduced for the early guilty plea and mitigation. The accused persons were not remanded.
    
28. The final aggregate sentence for the two offences that apply to the respective accused persons 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.
    
29. 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.
    
30. The accused persons are first offenders of comparatively good character, although the first accused has a previous conviction of assault causing actual bodily harm I consider him as a first offender, isolated offences committed, they are in their early twenties, pleaded guilty at the earliest opportunity, are remorseful, cooperated with police leading to full recovery of stolen items and they take full responsibility of their actions. I consider these special reasons as rendering an immediate imprisonment term inappropriate.
    
31. The accused persons are young offenders, with a bright future ahead of them, an imprisonment term will not augur well for their future. This court has taken into account rehabilitation over and above retribution.
    
32. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that the sentence is just in all the circumstances of the case.
    

ORDERS

33. The accused persons are sentenced to 2 ½ years imprisonment each as an aggregate sentence for the offences mentioned in the information filed which is suspended for 3 years. The effect of suspended sentence will be explained to the accused persons.
    
34. 30 days for the juvenile and all the accused persons to appeal to the Court of Appeal.
    

Sunil Sharma

Judge
At Lautoka
21 April, 2022
Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Juvenile and all the Accused.