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State v Bola - Sentence [2022] FJHC 525; HAC67.2022 (25 August 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Crim. Case No: HAC 67 of 2022


STATE


vs.


  1. JONE BOLA
  2. MANOA TOGAMALO

Counsel: Ms. B. Kantharia for the State
Ms. L. Ratidara for 1st Accused


Submissions on sentencing : 22nd August 2022
Date of Sentence : 25th August 2022


SENTENCE


  1. Your charges read thus;

COUNT ONE

Statement of Offence

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


Particulars of Offence

JONE BOLA and MANOA TOGAMALO on the 21st day of March, 2021 at Tamavua, in the Central Division, entered into the property of RAJENDRA PRASAD as trespassers, with the intention to commit theft therein.


COUNT TWO

Statement of Offence

THEFT: contrary to Section 291 (1) of the Crimes Act, 2009.


Particulars of Offence

JONE BOLA and MANOA TOGAMALO on the 21st day of July, 2021 at Tamavua, in the Central Division, in the company of each other, dishonestly appropriated 1 x Skyworth branded T.V. screen – 32 inches, 2 x Red Label Liquor 750ml, 4 x 750ml Black Label Liquor, 1 x Sony branded radio and 1 x Seiko gold wrist watch the property of RAJENDRA PRASAD with the intention of permanently depriving RAJENDRA PRASAD of his properties.


  1. On 15th of August 2022, you Jone Bola the 1st Accused being aware and well advised of the legal effects, did plead guilty to both the above counts in the presence of your Counsel. This Court was satisfied that you fully comprehended the legal effects and that your pleas were voluntary and free from influence.
  2. The summary of facts read and explained on 22nd of August, 2022 reveals that the offence of 'Aggravated Burglary' and ‘theft’ were committed and you understood and admitted the following summary of facts;
    1. Background

2. Incident

2.1 On 21st July, 2021, at around 12.38am, PW2 was in his sitting room when he heard some noises coming in from the next door property at 372 Princess Road, Tamavua which is situated next to his house and is about 10 meters apart from where he stays.
2.2 PW2 went outside and saw the lights of the front porch of the property next door were switched on and heard noises coming from the top floor of the house and PW2 could make out that that people making noises were drunk and that the voice were that of men and woman inside.
2.3 PW2 knew the property belongs to Rajendra Prasad and that his daughter was staying there; PW2 than called the police.
2.4 At around 0055hrs the police arrived at the property situated at 372 Princess Road. Officers who attended the crime scene were - SC Amini, PC Krishneel, PC Praneel and PC Eparama.
2.5 PC Krishneel, PC Eparama and SC Amini entered the compound at Lot 372 Princess Road through the gate that was open and went to the main entrance turning on the torch light saw an I-Taukei man on the steps. They all proceeded up and whilst PC Eparama was trying to open the door of the house; PC Krishneel heard some sound from the side of the building. SC Amini then shone the torch to the side of the building and when they saw an I-Taukei male trying to hide his face. This I-Taukei male was wearing black shorts with black t-shirt.
2.6 PC Amini and PC Krishneel then tried to reach towards this I-Taukei male but he ran to the back of the building and jumped down over the fence and rolled down the slope into the drain. When the officers reached the drain, the I-Taukei male started to ran through the drain however the officers were able to capture him and was later escorted to the Samabula Police Station where the officers came to know his name as Jone Bola.
2.7 The property at 372 Princess Road, Tamavua belongs to Rajendra Prasad who at the time of the alleged offending was in Lautoka and his caretaker Deo Chand – PW1 checked the premises and discovered the following items missing:-

And later the police had recovered 1 x Seiko gold wrist watch from one of the suspects they arrested from the alleged crime scene and PW1 confirmed that same belonged to the owner of the house – Mr. Rajendra Prasad.

2.8 A1 was interviewed at the Samabula Police Station on 21/07/21 wherein he gave his name as Jone Bola and he admitted to being at the property at 372 Princess Road. A1 stated that he had entered the house by climbing the pipe leading to the kitchen window and then opened door from inside (Q & A 74 to 78 of the record of interview).

3.0 A1 stated that his accomplice was standing outside the front door whilst he climbed up and once inside the house; they both ate the food and consumed liquor at the property (Q & A 80 to 87 of the record of interview).

3.1 A1 agreed that he was wearing a black short and black shirt whilst he was at the property at 372 Princess Road (Q & A 88 of the record of interview).

3.2 A1 was taken by the police for scene reconstruction and he showed the police what route they followed to reach the house at 372 Princess Road plus the parts of the house they drank and ate the food (Q & A 90 to 97of the record of interview).

3.3 Upon reconstruction of the kitchen, police asked A1 whether there were any of his belongings there and A1 pointed and confirmed that 1 x flip flops and 1 x black Everlast brand backpack belonged to him. Add the contents inside the bag were some of his clothes together with one bottle black label which A1 confirmed putting it inside the bag from the property (Q & A 98 to 101 of the record of interview).

3.4 A1 further admitted to damaging one of the photo frames at the property in which he injured one of his fingers. (Q & A 102, 111 and 112 of the record of interview).

3.5 When put to A1 that part of the items stolen from 372 Princess Road were 1 x Skyworth TV, 2 x red label liquor and 4 x black label bottles; he stated that he has no knowledge of the TV but only the black label in his bag. (Q & A 116 of the record of interview).

3.6 A1 further admitted to have stolen the golden watch from 372 Princess Road and same was found in his possession when taken under arrest to the Samabula Police Station (Q & A 118 and 120 of the record of interview).

3.7 A1 also admitted to having jumped out of the window at 272 Princess Road and over the fence and tried to flee. (Q & A 121 of the record of interview).

3.8 A1 had agreed in his record of interview at Q & A 67 to be swabbed and the DNA test.

3.9 The DNA analysis report confirmed that major component was consistent with the reference DNA profile of A1 which were lifted from the crime scene from the kitchen floor, dining room floor, dining room wall, kitchen bench and kitchen window sink.

4.0 The accused is charged and has pleaded guilty to one count of Aggravated Burglary and one count of Theft contrary to section 313 (1) (a) and section 291 (1) of the Crimes Act, 2009 respectively.


  1. This Court is satisfied that, you did fully understand the nature of the charges and the consequences of pleading guilty and the summary of facts covers and satisfies all the elements of the offence of Aggravated Burglary count No. 1. However as regards and charge of theft out of the several items stated therein the 1st Accused in his cautioned statement annexed to the summary of facts, does not admit the theft of 1 x Skyworth brand T.V. screen 32 inches valued at $650.00 and 1 x blue Sony brand radio valued at $350.00. Thus the admitted facts satisfy the charge of theft in respect 2 x red label liquor 750ml valued at $178.00 ($89.00 each), 4 x 750ml black label valued at $356.00 ($89.00 each) and 1 x Seiko gold.
  2. Accordingly, this Court finds you the 1st Accused guilty of Count 1 for Aggravated Burglary and of Count 2 for theft of 2 x red label liquor 750ml valued at $178.00 ($89.00 each), 4 x 750ml black label valued at $356.00 ($89.00 each) and 1 x Seiko gold as charged and convict you separately for the said offences.
  3. The submissions on sentence and mitigation tendered by your Counsel and the State Counsel are comprehensive and certainly helpful.

Sentencing the 1st Accused Jone Bole

  1. It is admitted that you the 1st Accused, together with another, entered the property of Rajendra Prasad at 372 Princess Road, Tamavua on 21st July, 2021, at around 12.30 a.m., the house of the complainants when the inmates were out and stolen 2 x red label liquor 750ml valued at $178.00 ($89.00 each), 4 x 750ml black label valued at $356.00 ($89.00 each) and 1 x Seiko gold referred to in the particulars of count No. 2 of the information.
  2. The offence of burglary involves entering or remaining in a premises as a trespasser with the intention to commit theft of anything in the premises. Thus to be guilty of the offence of burglary, it is sufficient to enter the premises with the relevant intention. The offence is committed even if, once inside the premises, the person does not actually carry out the additional intended offence involving theft, The offence of Aggravated burglary for which the Accused was convicted occurs if, at the time of the burglary, the offender is in the company of one or more other persons. The offence of Aggravated burglary has a maximum penalty of 17 years and the offence of theft has a maximum penalty of 10 years imprisonment.
  3. Aggravated burglary is a preparatory offence, because it involves an act of entering a property with the intention to commit a further offence. If, once the person has entered the premises, he or she actually commits the intended offence involving theft, he or she would be charged and sentenced separately for both the offence of burglary and the offence of theft. Though aggravated burglary is a preparatory offence, in view of the maximum penalty prescribed, it certainly is considered a serious offence in Fiji the gravity of aggravated burglary will depend on the manner and the nature of entering the premises.
  4. The prevalence of burglary and this type of home-invasion-style offences as in the present case will certainly cause great anxiety and disquiet in any community whilst undermining the sense of security that people feel in their own homes and will also bring about a sense of insecurity and inhibition to close up their houses and go about their daily errands, other business and work freely. I find this is a very serious offence. Wherefore, it is my opinion that such offenders must be imposed with severe and harsh punishments. Thus, in sentencing for offences of this nature it is necessary to convey a message to offenders and to those who intend to offend that these crimes will not be tolerated and will entail stiff sentences. Therefore, the purpose of this sentence is founded on the principle of deterrence and the protection of the community. Similarly, I have to be mindful of the principle of rehabilitation too.
  5. The tariff as determined by State v Seru, Sentence [2015] FJHC 528 HAC 426.2012 (6 July 2015) and also reiterated by the Court of Appeal in Daunivalu v State [2020 FJCA 127; AAU138.2018 (10 August 2020) for the offence of Aggravated Burglary is 18 months to 3 years which carries a maximum penalty of 17 years imprisonment.
  6. The tariff as determined by Waqa v State, Sentence [2015] FJHC 72 HAA017.2015 (5 October 2015) for the offence of Theft is 4 months to 3 years which carries a maximum penalty of 10 years imprisonment. In Mikaele Ratusili v. State, Criminal Appeal No. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft considering various factors in the following form:

“(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.”


Aggregate Sentence

  1. Section 17 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”), reads thus;

“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.”


  1. The count of aggravated burglary and the count of theft for which you have been convicted are offences founded on the same facts and are of similar character. In accordance with section 17 of the Sentencing and Penalties Act, I consider it just and appropriate to impose an aggregate sentence for both offences having the Aggravated Burglary count as the base sentence as it is the serious of the two offences.
  2. Home invasion in the present case certainly would have required some knowledge that the inmates of the house were not in. Thus though this appears to be an opportunistic offending considering that some surveillance was required and the manner of gaining entry climbing a gutter, remaining in the house with impunity, I find that the level of culpability in this crime is high.
  3. In selecting a starting point, this Courts is required to have regard to the objective seriousness of the offence. I have considered the culpability and the harm factors of your offending. You have entered the residential house of the Complainant and acted in utter disregard of his property rights. Then you have committed serious offences against property under Part 16 of the Crimes Act, and this type of offences are prevalent in the country and the number of young offenders brought before the courts for committing such offences appear to be quite alarming and significant. Upon considering the gravity and objective seriousness of the offences, to my mind it is reasonable and just to pick 18 months’ imprisonment as the starting point of the aggregate sentence of the 1st Accused Jone Bola. However, the final sentence will depend on the mitigating and aggravating factors which I will consider next.
  4. First, I will consider the aggravating factors. I observe the following aggravating circumstances of your offending:
    1. Around 7.00 p.m. you with the 2nd Accused have entered the property of the complainant and you were bold and undeterred.
    2. This is an opportunistic theft. You went into the house of the victim upon realising that there was no one inside entered the house stole the items in count No. 2 and was eating and drinking liquor when a neighbor alerted the police and you jumped out of a window and over a fence and tried to flee.
    1. It was committed against the property rights of the complainant.
    1. You acted with impunity.
  5. I am inclined to add 1 year and 6 months to the starting point for the above-mentioned aggravating factors bringing the interim sentence to 3 years’ imprisonment
  6. Now as for the mitigating factors the following circumstances were submitted, that you;
    1. are now 28 years of age and is the father of a 6-year-old child,
    2. are employed as a constructor earning $ 180 weekly,
    1. are truly remorseful and seeks forgiveness,
    1. co-operated with the police,
    2. were 27 years of age at the time of the offending,
    3. pleaded guilty at an early stage,
    4. have no a previous convictions.
  7. You admit having been in the Suva prison for a drug related matter but the State submits that you are a first offender and you have no previous convictions (vide-para 5.4 of Sentencing submissions of the State). The only inference is that you may have been a suspect but there was no conviction on that matter as at the date of this offending. As per paragraph 6.1 of the sentencing submission of the State the 1st Accused had been sentenced for the other matter after being arrested for this offence. As such I will not consider this against you as being a previous conviction.
  8. I think it to be just to deduct 1 year which includes 6 months for the guilty plea and the balance for the said mitigating factors and the aggregate sentence will thus be 2 years’ imprisonment.
  9. Your counsel has submitted that you are living with your wife with a 6-year-old daughter and grand mother and sister at Nausori and you earn about $ 180 per week. You are the sole the breadwinner of your family. This shows that you have just begun a family life. Further, as submitted by the State that you are a first-time offender and due to a lapse of judgment and being intoxicated you have joined the others in this offending. It is submitted that now you sincerely regret your actions and you are willing and promise to reform and not to re-offend. You have accepted responsibility for your actions and did save the court’s time by pleading guilty at the earliest opportunity. That you have cooperated with the police too.

Suspending the punishment

  1. Your Counsel submitted that this is a fit matter for this Court to consider acting under section 26(2) of the Sentencing and Penalties. Act especially as you are relatively a young offender. The prosecution had no serious objection to this submission. I am of the view that the firm undertaking and promise made to this court that you will rehabilitate and reform and you will lead a good life and not re-offend are sufficient rounds to consider suspending your punishment in terms of the provisions of section 26(1) of the Sentencing and Penalties Act.
  2. As per Section 26(2) of the Sentencing and Penalties Act, the discretion to suspend a sentence should only be exercised by a High Court where the custodial sentence does not exceed 3 years and as opined in the Sentence Ruling in State v Aiding Zhang [2017] HAC 061 if there be circumstance which are exceptional.
  3. In DPP v Jolame Pita (1974) 20 FLR 5 at p.7:, Grant Acting CJ (as he was then) explained what special circumstances that warrant and justify the suspension of a sentence thus;

"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."


  1. Previously this Court did suspend the sentence of the 2nd Accused whose circumstances were very much similar but for he being 21 and you 27 years of age. Parity principles and equality are matters I am required to follow and be mindful in sentencing co-offenders. In R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 at [213] it was held that, should the judicial officer depart from the sentence imposed upon a co-offender, the judicial officer must ensure that they differentiate between the moral culpability amongst the co-offenders by reference to their contribution to the joint criminal enterprise. There is no tangible or rational basis to differentiate between both of your moral culpability as the contribution to the joint enterprise is the same. As such it is necessary to consider your Counsel’s application for the suspension of the sentence in the same manner as that of the 2nd Accused. The final punishment does not exceed 3 years and in the circumstances of this case especially considering the comparative age of the 1st Accused with no recorded previous convictions vis-à-vis this offending or pending similar matters and who appears to have just to started a family life, I am of view that it is better and is a fit case to suspend the sentence of this Accused instead of just throwing him into jail in the first instance.

Sentence

  1. Thus, upon duly considering the material before me, I sentence you the 1st Accused to an aggregate sentence of 2 years’ imprisonment and suspend the same for a period of 8 years.
  2. The consequences of the suspended sentence are explained.
  3. You have thirty days (30) to appeal to the Fiji Court of Appeal if you so desire.

..........................................................
Gihan Kulatunga
Judge


At Suva
25th August 2022


Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for 1st Accused


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