State v N.C [Juvenile] [2022] FJHC 428; HAC134.2021 (25 July 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 134 of 2021

STATE

V

N.C [Juvenile]

Counsel : Mr. J. Nasa for the State.

: Ms. E. Radrole for the Juvenile.

Date of Submissions : 31 May, 2022
Date of Hearing : 11 July, 2022
Date of Punishment : 25 July, 2022

PUNISHMENT

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

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

Director of Public Prosecutions dated 4^th February, 2022:

FIRST COUNT

Statement of offence

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

Particulars of Offence

N.C with others between the 21^st day of November, 2021 and the 22^nd day of November, 2021 at Nadi in the Western Division, entered into the dwelling house of SHAMAL RAJ as trespassers, with intention to commit theft therein.

SECOND COUNT

Statement of offence

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

Particulars of Offence

N.C with others, between the 21^st day of November, 2021 and the 22^nd day of November, 2021 at Nadi, in the Western Division, dishonestly appropriated 1 x Chiefs rugby jersey, 1 x Crusaders rugby jersey, 1 x RKS t-shirt, 1x grey Acer laptop, 1x pair of white shoes, 1x blue slip-on, 1x black USB Bluetooth radio and 1x Jovan perfume, the property of SHAMAL RAJ with the intention of permanently depriving SHAMAL RAJ of his properties.

2. On 24^th March, 2022 the juvenile in the presence of his counsel pleaded guilty to both counts. Thereafter on 7^th April, 2022 the juvenile admitted the summary of facts read.
   
3. The summary of facts was as follows:
   

The complainant is Shamal Raj (PW 1), 27 years of age, Machine Operator of Nasau, Nadi.

The juvenile is N.C 17 years of age of Solovi, Nadi.

On the 22^nd day of November, 2021, PW 1 was working in Suva at Valelevu. At around 10am of the said date, he received a phone call from his neighbour at Nasau, namely: Prem Lala (PW 2).

PW 2 advised PW 1 that someone broke into his house at Nasau. PW 1 then inquired with PW2 as to how the incident happened. PW 2 informed PW1 that she saw the back door of his house open which prompted her to check. Upon checking, PW 2 learnt that no one was in the house and that items were scattered everywhere.

Following receipt of this information from PW 2, PW 1 immediately left his workplace in Suva and returned to Nadi. Upon reaching his house at Nasau, PW 1 noticed that the door screen to his house was pulled outwards and suspected that the door was opened from inside. PW 1 checked inside his house and discovered assorted items were stolen as follows:

(a) 1x Chiefs rugby jersey valued at $ 150.00
(b) 1 x Crusaders rugby jersey valued at $ 150.00
(c) 1 x RKS t-shirt valued at $ 30.00
(d) 1 x Grey Acer laptop valued at: $ 800.00
(e) 1 x White high cur shoes valued at $ 50.00
(f) 1 x Blue slip-on valued at: $ 15.00
(g) 1 x Black USB Bluetooth radio valued at $ 80.00
(h) 1 x Jovan perfume valued at $ 30.00

Total $1,305.00

The matter was then reported to police and investigations were carried out.

On 26^th November 2021, Munish Parshu Ram (PW 3) was at Gopal’s Minimart Shop, Solovi, Nadi, attending to some personal shopping. After completing his shopping and upon exiting Gopal’s Minimart Shop, PW3 was approached by the juvenile. Therein, the juvenile offered to sell PW 3 a laptop for $400.00. PW 3 informed the juvenile that it was expensive and he could not afford it. The juvenile then offered to reduce the price to $50.00.

As a result, PW 3 agreed to buy the laptop at $50.00. PW 3 then gave the juvenile a lift to his home to get the laptop in exchange of $50.00 as payment. On 28^th November 2021, at around 6.30 pm the police visited PW 3 and arrested him for being in possession of a laptop which was stolen from PW 1. PW 3, however, was not aware that the laptop was a stolen property and he voluntarily handed it over to police.

The juvenile was arrested and interviewed under caution in the presence of his mother, Lusiana Tinanivalu, at Nadi Police Station on 28^th November, 2021. The juvenile admitted from question and answers 43 to 69 of his record of interview that he had accompanied two of his male cousins to PW1’s house on 21^st November 2021. The juvenile admitted entering into PW1’s house with others and packed assorted items into a bag. He admitted that he and others, then left PW1’s house with assorted items. The juvenile also admitted that at the time they broke into PW1’s house, the property was empty.

On 29^th November 2021, the juvenile was formally charged for one count of aggravated burglary and one count of theft in the presence of his mother. At question and answer 12 of his charge statement, the juvenile admitted that he with others, broke into PW1’s house and stole assorted items therein.

A copy of the juvenile’s record of interview and charge statements are attached.

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 17 years of age at the time;
   2. First and young offender in conflict with the law;
   100. Is employed as a delivery boy;
   4. Resides with his parents and siblings;
   5. Earns $150.00 per week and is the sole bread winner of the family;
   6. Co-operated with the police;
   7. Pleaded guilty at the earliest opportunity;
   8. Remorseful and apologizes for his actions;
   9. Seeks forgiveness from his parents, the victim and the court;
   10. 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, Criminal 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. State, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft as follows:

“(i) For the 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.”

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 during night time. He was bold and undeterred in what he did in the company of two others.

2. Prevalence of the offending

There has been an increase of such offending that people are reluctant to leave their homes unattended.

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. The officer recommends the following:
    1. Juvenile to attend counseling with his church and to attend to youth group 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 hardworking and a trustworthy 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 $150.00 and be bonded in respect of the good behaviour of their son by signing a bond of $500.00 in total.
    
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 reform himself and keep away from conflict with the law.
    

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 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 paragraph 23:

“[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."

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 Juveniles Act (17 years of age at the time of the offending), of good character, isolated 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.
    
24. I am sure the juvenile with parental guidance, supervision and support has a bright future ahead of him hence an imprisonment term 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 for a maximum of two years imprisonment.
    
25. 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 $500.00. Furthermore, the parents of the juvenile are to pay the sum of $150.00 as compensation to the victim within 14 days from today payable at Nadi Magistrate’s Court;
   

100. The Social Welfare Department, is to immediately 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, Nadi;
   
7. 30 days to appeal to the Court of Appeal.
   

Sunil Sharma

Judge

At Lautoka
25 July, 2022

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