State v Deku - Sentence [2022] FJHC 5; HAC185.2020 (12 January 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 185 of 2020

STATE

V

1. WAISEA DEKU
2. M.N [Juvenile]

Counsel : Ms. S. Naibe for the State.
: Ms. V. Narara for the Accused and the Juvenile.

Date of Submissions : 11 January, 2022
Date of Sentence/
Punishment : 12 January, 2022

SENTENCE/PUNISHMENT

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

1. The accused and the juvenile are charged with the following offences as per the following information filed by the Director of Public Prosecutions dated 5^th February, 2021:

FIRST COUNT

Statement of offence

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

Particulars of Offence

WAISEA DEKU and M.N on the 20^th day of November, 2020 at Sigatoka in the Western Division, entered into the dwelling house of MOHAMMED JANEEF as trespassers with intent to commit theft from therein.

SECOND COUNT

Statement of offence

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

Particulars of Offence

WAISEA DEKU and M.N on the 20^th day of November, 2020 at Sigatoka in the Western Division, dishonestly appropriated a Samsung J1 mobile phone and a Huawei pocket Wifi the property of MOHAMMED JANEEF with the intention of permanently depriving the said MOHAMMED JANEEF of the said property.

2. On 1^st December, 2021 the accused and the juvenile pleaded guilty to the above counts in the presence of their counsel. Thereafter on 15^th December, 2021 the accused and the juvenile were read and explained the summary of facts in the ITaukei language which was admitted by both of them.
3. The brief facts were as follows:

The complainant is this matter is MOHAMMED HANEEF (PW1), 58 years old, self-employed, residing at Naidovi, Cuvu, Sigatoka.

On the 20^th of November 2020 at about 11.50 am PW1 was at home with his wife. Before leaving for Naidovi in his van, PW1 had charged his portable WIFI and left it on the kitchen table together with his Samsung J1 mini phone. PW1 recalls that before he left his house, he had closed the door but did not lock it as his wife was outside in the garden. After 20 minutes PW1 returned and found that his portable WIFI and phone were missing. PW1 asked his wife but she did not know anything but she only heard someone calling. PW1 reported the matter to Police.

During the investigations, Police managed to arrest the accused and juvenile. Both were interviewed under caution. Accused stated in his caution interview that he entered PW1’s house with his accomplice and took the Samsung JI mini phone (Q&A 28, 34). Accused said he wanted to sell the phone to one Rakesh (Q&A 35, 43, 44).

Juvenile admitted in his caution interview that he also entered PW1’s house with his accomplice and took the portable WIFI (Q&A 41, 42, 43, 44, 45 and 46). Both items were fully recovered by Police.

4. After considering the summary of facts read by the state counsel which was admitted by the accused and the juvenile and upon reading their caution interviews this court is satisfied that the accused and the juvenile have entered an unequivocal plea of guilty on their freewill.
5. This court is also satisfied that 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 offences of aggravated burglary and theft which the accused and the juvenile admitted committing in the company of each other.
6. In view of the above, this court finds the accused guilty and he is convicted as charged. In respect of the juvenile this court finds the juvenile guilty as charged. Both counsel filed sentence/punishment and mitigation submissions for which this court is grateful.
7. The two offences with which the accused and the juvenile have been convicted and found guilty are founded on the same facts hence it is only proper that an aggregate sentence be imposed.
   

8. 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.”

9. The learned counsel for the accused and the juvenile presented the following mitigation:

Accused – WAISEA DEKU

a) The accused is a first offender;

b) 18 years of age at the time;

c) Unemployed supported by his parents;

d) Seeks forgiveness from the complainant;

e) Promises not to reoffend;

f) Pleaded guilty at the earliest opportunity;

g) Genuinely remorseful;

h) All the stolen items have been recovered;

i) Cooperated with the police.

Juvenile – M.N

a) The juvenile was 17 years of age;

b) Young offender and first offender;

c) Resides with his parents;

d) Now employed as a Security Officer;

e) Seeks forgiveness from the complainant;

f) Cooperated with the police;

g) Pleaded guilty at the earliest opportunity;

h) Genuinely remorseful for what he has done;

i) Full recovery of stolen items;

j) Promises not to reoffend.

TARIFF

10. The maximum penalty for the offence of aggravated burglary is 17 years imprisonment.
    
11. The accepted tariff for this offence is a sentence between 18 months to 3 years imprisonment (see Lni v. State, Criminal Appe Appeal No. AAU 106 of 2014 (26 February, 2016).
    
12. The tariff for the offence of theft is settled. In Mikaele Ratusili vte,

Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Mn J. set

out the tariff for theft as follows:

“(i) For the first orst offence of simple theft the sentencinge should be between 2 and 9 months.

(ii) any any subsequent offence should attract a penalty of at least 9 months.(iii) Theft of larg 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

14. The following aggravating factors are obvious:
    
    1. Day time invasion of property

It was during the day both the accused persons entered the property of the complainant. They were bold and undeterred.

2. Opportunistic Theft

The accused and the juvenile went into the compound of the victim for the purpose of selling coconuts when they knew there was no one inside the house they quickly entered the house and stole the items from the kitchen and ran away.
c) Prevalence of the offences

The offences committed are very prevalent nowadays.

15. For this case two different sentencing regimes apply hence for completeness the accused will be considered separately from the juvenile.

ACCUSED

16. Considering the objective seriousness of the offending, I select 18 months imprisonment (lower range of the tariff) as the aggregate starting point of the sentence. The sentence is increased for the aggravating factors but reduced for mitigation and good character, since the accused is a first offender.
    
17. The accused has pleaded guilty at the earliest opportunity he also regrets what he had done which I accept as genuine remorse, and for this I further reduce the sentence. The accused was not in remand for this matter.
    
18. The final aggregate sentence for the two offences 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.
    
19. 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 paragraphs 22 and 23:

“[22] I accept that the Magistrates' Court has discretion to suspend a sentence if the final term imposed is 2 years or less. But that discretion must be exercised judiciously, after identifying special reason to suspend the sentence. The special reason can vary depending on the facts of each case.

[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."

20. 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.
    
21. The accused is a first offender of comparatively good character, isolated offences committed, is in his early twenties, pleaded guilty at the earliest opportunity, is remorseful, full recovery of stolen items, cooperated with police during the investigations and he takes full responsibility of his actions. I consider these special reasons as rendering immediate imprisonment inappropriate.
    
22. This court has taken into account rehabilitation over and above retribution.
    
23. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that a suspended sentence is just in all the circumstances of this case.
    
24. In summary the accused is sentenced to 2½ years imprisonment as an aggregate sentence for both the offences which is suspended for 3 years.

PUNISHMENT – JUVENILE

SOCIAL WELFARE REPORT

25. As per the order of this court the Social Welfare Department prepared a pre-punishment report after conducting home assessment and interviews. The Social Welfare Officer recommends:
    

(a) That the juvenile be granted a non-custodial sentence.

This court expresses its appreciations to Ms. Loata Tuikawakawa from the Social Welfare Department, Sigatoka for a concise and comprehensive report.

PARENTAL SUPPORT

26. From the pre-punishment report it is obvious to me that the parents of the juvenile take responsibility for the actions of their son as well. The juvenile has now turned 18 years and is employed in the security company owned by his father. This employment has brought about a sense of responsibility in the juvenile who is directly under the control and supervision of his father.
    
27. The juvenile has also taken full responsibility for his actions, is genuinely remorse and promises not to reoffend. He is now committed to his employment which is a positive sign for him.
    
28. Considering the objective seriousness of the offences committed, I select 18 months imprisonment (lower range of the tariff) as the starting point of the aggregate punishment. The punishment is increased for the aggravating factors but reduced for early guilty plea, mitigation, and good character. There is no detention period for the juvenile.
    

29. The juvenile falls under a 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 a young person at 2 years imprisonment.

30. In view of the above, the final aggregate punishment is 2 years 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.
    
31. The following relevant special circumstances or special reasons for the suspension of the imprisonment term in my view needs to be weighed in choosing immediate imprisonment or a suspended punishment.
    
32. The juvenile is a young person as per the Juveniles Act, of good character, isolated offences were committed by him, he was 17 years of age at the time of the offending, pleaded guilty at the earliest opportunity, is genuinely remorseful, cooperated with police and takes full responsibility of his actions. These special reasons render immediate imprisonment term inappropriate.
    
33. I am certain that with parental supervision and support the jle has a bright future ahead of him hence an imprisonment term will not augur well for his his future. This court has taken into account rehabilitation over and above deterrence.
    
    34. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that the punishment is just in all the circumstances of the case.
        
        35. In summary the juvenile is given a punishment of 2 years imprisonment which is suspended for 3 years. The following orders are to take effect immediately.
            

ORDERS

1. The accused is sentenced to 2½ years imprisonment as an aggregate sentence for both the offences which is suspended for 3 years;
   
2. The juvenile is given an aggregate punishment of 2 years imprisonment which is suspended for 3 years;*
   

100. 30 days to appeal to the Court of Appeal.
     

*The effect of suspended sentence is explained to the accused and the juvenile.

Sunil Sharma

Judge

At Lautoka
12 January, 2022

Solicitorss
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused and the Juvenile.