State v Prasad - Sentence [2022] FJHC 70; HAC115.2020 (11 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 115 of 2020

STATE

V

1. KUNAL EDWIN PRASAD [Sentenced on 23 September 2020]

2. ASHWIN CHANDRA LAL

Counsel: Mr. Zenith Zunaid for the State
2^nd Accused Appears in Person

Sentence Hearing: 9 November 2021

Sentence: 11 February 2022

SENTENCE

[1] Ashwin Chandra Lal, as per the Amended Information filed by the Director of Public Prosecutions (DPP), you, together with Kunal Edwin Prasad, were charged with the following offences:

[COUNT 1]

Statement of Offence

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

Particulars of Offence

KUNAL EDWIN PRASAD & ASHWIN CHANDRA LAL alias (“ashwin chand”), on the 25^th day of March 2020, at Samabula, in the Central Division, in the company of another, entered into the premises of FIJI TYRELINE LIMITED, as trespassers, with intent to commit theft therein.

[COUNT 2]

Statement of Offence

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

Particulars of Offence

KUNAL EDWIN PRASAD & ASHWIN CHANDRA LAL alias (“ashwin chand”), on the 25^th day of March 2020, at Samabula, in the Central Division, in the company of another, dishonestly appropriated (stole) 26 THUNDERER Brand Tyres, the properties of FIJI TYRELINE LIMITED with intention of permanently depriving FIJI TYRELINE LIMITED of the said properties.

[2] This matter was first called before the High Court on 5 May 2020. On the same day, the DPP filed the Disclosures relevant to the case, while the Information was filed on 29 May 2020. The plea was taken on the same day, and you pleaded not guilty to the two charges.

[3] On 29 June 2020, the DPP filed an Amended Information. On 13 July 2020, your plea was taken on the Amended Information and you pleaded not guilty to the two charges.

[4] However, on 4 August 2020, Kunal Edwin Prasad (1st Accused) informed Court that he wishes to change your plea. Accordingly, on 19 August 2020, the 1st Accused pleaded guilty to both counts in the Information (while you maintained that you were not guilty). This Court found the 1st Accused guilty on his own plea and convicted him of the two counts as charged and passed sentence on him on 23 September 2020.

[5] Thereafter, this matter continued against you.

[6] On 19 October 2021, you informed Court that you wish to change your plea. Accordingly, on the same day him pleaded guilty to both counts in the Information This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charges against you and the consequences of your plea.

[7] On 26 October 2021, the Summary of Facts were read out and explained to you. You understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the two counts in the Information, and found the two counts proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the two counts as charged.

[8] I now proceed to pass sentence on you.

[9] The Summary of Facts filed by the State was as follows:
“Accused

The accused in this matter is one, Ashwin Chandra Lal alias Ashwin Chand, 41 years old at the time of offence, self-employed as a mechanic, resided at 41 Kasavu Village, Baulevu.
Complainant [PW1]

The complainant in this matter is one, Sachin Roy Prasad, 47 years old, Director at Tyreline Fiji, of Lot 109, Kalia Street, Nakasi.

Facts

1. On 25 March 2020, at around 6.28 pm, the complainant was informed that two men had entered into the Tyreline Fiji bulk-store located at Lakeba Street, Samabula and were seen removing tyres from the said bulk.
   
2. Upon hearing this, the complainant rushed back to the said bulk-store where he found that the door of the Tyreline Fiji bulk-store had been forcefully opened. The complainant then conducted a stock-take in which he noted that 26 Thunderer brand tyres had been stolen (stock-take attached and marked as Annexure A). The stolen tyre sizes ranged between 175/70 R14 (x16) and 165/R 13 C (x10), all to a total value of $2,490.00.
   
3. The matter was then reported to the police where investigations began. During the course of the investigations, both the accused persons were arrested as being suspects to the crime. During the course of the investigations as well, police managed to recover some of the stolen tyres which belonged to Tyreline Fiji from the accused’s accomplice and his accomplices other acquaintances (search-lists pertaining to the relevant recoveries are attached herewith and marked as Annexure B).
   
4. The accused was later caution interviewed and he made full admissions to committing the offences. The accused admitted that on the day of the offence he had gone with his accomplice (Kunal Prasad) and his wife in a private vehicle (Q&A 9-11). The accused stated that his accomplice and his wife had already planned to break into Tyreline warehouse (Q&A 15). The accused stated that the vehicle he was using on that particular day had a stolen number-plate which he had stolen from another car on an earlier occasion (Q&A 16-18). The accused stated that as they drove to the complainant’s bulk store, his accomplice’s wife then parked the car on the road beside the tyre warehouse. The accused’s accomplice then went into the warehouse and stole five tyres. The accused admitted that he then went and helped his accomplice load more tyres into the vehicle (Q&A 25-26). The accused stated that he only took out four tyres from the warehouse and the rest of the tyres were taken out by his accomplice (Q&A 28). The accused admitted to receiving $160.00 as his share for stealing the tyres from Lakeba Street (Q&A 40).
   
5. The accused and his accomplice (Kunal Edwin Prasad) in the company of each other entered into the property of the complainant as trespassers with the intention to commit theft and thereafter committed theft of the items as outlined in the Amended Information with the intention to permanently deprive the complainant of his said properties.
   
6. Annexed hereto is the Record of Interview for the accused marked as Annexure C.”

[10] Ashwin Chandra Lal, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[11] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[12] I have duly considered the above factors in determining the sentence to be imposed on you.

[13] In terms of Section 313 (1) of the Crimes Act, “A person commits an indictable offence (of Aggravated Burglary) if he or she-

(a) Commits a burglary in company with one or more other persons; or
(b) ...........”

The offence of ‘Burglary’ is defined at Section 312 (1) of the Crimes Act as follows: “A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building”.

The offence of Aggravated Burglary in terms of Section 313 (1) of the Crimes Act carries a maximum penalty of 17 years imprisonment.

[14] The tariff for the offence of Aggravated Burglary is between 18 months to 3 years imprisonment. This tariff has been adopted in several decided cases: State v. Mikaele Buliruarua [2010] FJHC 384; HAC 157.2010 (6 September 2010); State v. Nasara [2011] FJHC 677; HAC 143.2010 (31 October 2011); State v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16 May 2013); State v. Seninawanawa [2015] FJHC 261; HAC 138.2012 (22 April 2015); State v. Seru [2015] FJHC 528; HAC 426.2012 (6 July 2015); State v. Drose [2017] FJHC 205; HAC 325.2015 (28 February 2017); and State v. Rasegadi & Another [2018] FJHC 364; HAC 101.2018 (7 May 2018).

[15] The Court of Appeal in Leqavuni v. State [2016] FJCA 31; AAU 106.2014 (26 February 2016), observed that the tariff for Aggravated Burglary is between 18 months to 3 years.

[16] This Court has been consistently following the tariff of 18 months to 3 years imprisonment for Aggravated Burglary: Vide State v. (Venasio) Cawi & 2 others [2018] FJHC 444; HAC 155.2018 (1 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 536; HAC 92.2018 (20 June 2018); State v. Pita Tukele & 2 others [2018] FJHC 558; HAC 179.2018 (28 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 995; HAC 92.2018 (17 October 2018); State v. (Maika) Raisilisili [2018] FJHC 1190; HAC 355.2018 (13 December 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 1209; HAC 92.2018 (18 December 2018); State v. Michael Bhan [2019] FJHC 661; HAC 44.2019 (4 July 2019); State v. Etika Toka HAC 138.2019 (1 November 2019); State v. Vakacavuti HAC337.2018 (7 November 2019); State v. Vakacavuti [2019] FJHC 1088; HAC338.2018 (7 November 2019); State v. Peniasi Ciri and Another [2020] FJHC 63; HAC14.2019 (6 February 2020); State v. Maikeli Turagakula and Another [2020] FJHC 101; HAC416.2018 (19 February 2020); State v. (Sachindra Sumeet) Lal & Another [2020] FJHC 147; HAC71.2019 (26 February 2020); State v. (Rupeni) Lilo [2020] FJHC 401; HAC225.2018 (9 June 2020); State v. (Taniela) Tabuakula [2020] FJHC 464; HAC106.2020 (23 June 2020); State v. (Eric Male) Robarobalevu [2020] FJHC 630; HAC102.2020 (6 August 2020); State v. (Usaia) Delai [2020] FJHC 631; HAC7.2020 (6 August 2020); State v Vakawaletabua [2020] FJHC 645; HAC441.2018 (11 August 2020); State v. (Sakeasi) Seru and Another [2020] FJHC 770; HAC136.2020 (18 September 2020); State v. (Kunal Edwin) Prasad [2020] FJHC 785; HAC115.2020 (23 September 2020); State v. (Emosi) Tabuasei [2020] FJHC 994; HAC131.2020 (27 November 2020); and State v. LR and Others [2020] FJHC 993; HAC133.2020 (27 November 2020); State v. Lal and Another [2020] FJHC 1024; HAC337.2019 (3 December 2020); State v. Koroitawamudu and Another [2020] FJHC 1055; HAC127.2020 (8 December 2020); State v. Koroi and Another [2020] FJHC 1065; HAC270.2020 (10 December 2020); State v. (Joji) Kotobalavu [2021] FJHC 101; HAC234.2020 (17 February 2021); State v. Nabou Junior [2021] FJHC 172; HAC277.2020 (22 March 2021); State v. Lutunamaravu & Others [2021] FJHC 191; HAC192.2020 (23 March 2021); State v. (Aminiasi) Vakalala & Another [2021] FJHC 195; HAC325.2020 (25 March 2021); State v. Lal [2021] FJHC 247; HAC337.2019 (5 October 2021); State v. Kaibalauma and Another [2021] FJHC 349; HAC59.2021 (1 December 2021); and State v. Senikaboa and Others [2021] FJHC 416; HAC237.2020 (17 December 2021).
[17] In terms of Section 291 (1) of the Crimes Act “A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property”. The offence of Theft in terms of Section 291 (1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[18] In Ratusili v. State [2012] FJHC 1249; HAA011.2012 (1 August 2012); His Lordship Justice Madigan proposed the following tariff for the offence of Theft:

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

(ii) ubsequbsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether foffence 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.”

[19] Since the theft was consequent to you and your accomplice entering a commercial premises as trespassers, and was planned, this cannot be considered as theft simpliciter. Therefore, it is my opinion that the appropriate tariff in this case should be in the range of 2 months to 3 years imprisonment for the offence of Theft.

[20] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[21] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence Ashwin Chandra Lal, I commence your sentence at 18 months imprisonment for the first count of Aggravated Burglary.

[22] Similarly, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Ashwin Chandra Lal, I commence your sentence at 6 months imprisonment for the second count of Theft.

[23] The aggravating factors are as follows:

(i) The frequent prevalence of these offences in our society today.

(ii) You and your accomplice trespassed into a commercial premises thereby paying scant regard to the property rights and privacy of the owners of the said property.

(iii) I find that there was some amount of pre-planning or pre-meditation by you and your accomplice in committing these offences.

(iv) You are now convicted of multiple offending.

[24] In mitigation you have submitted as follows:

(i) That you fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.

(ii) You have submitted that you are remorseful of your actions and assured Court that you will not re-offend.

(iii) Some of the stolen items were recovered.

(iv) That you entered a guilty plea during these proceedings.

[25] Ashwin Chandra Lal, considering the aforementioned aggravating factors, I increase your sentence by a further 3 years. Now your sentence for count one would be 4 years and 6 months imprisonment. Your sentence for count two would be 3 years and 6 months imprisonment.

[26] I accept that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine. I also accept the fact that some of the stolen items were recovered. Accordingly, considering these mitigating factors, I deduct 1 year and 6 months from your sentences. Now your sentence for count one would be 3 years imprisonment. Your sentence for count two would be 2 years imprisonment.

[27] I accept that you have entered a guilty plea during the course of these proceedings, although it was done belatedly. I accept that in pleading guilty to the charges you have saved time and resources of this Court instead of proceeding with the matter for trial. For your guilty plea I grant you a further discount of 12 months each for counts one and two.

[28] In the circumstances, your sentences are as follows:

Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-2 years’ imprisonment.

Count 2- Theft contrary to Section 291 (1) of the Crimes Act –1 year imprisonment.

I order that both sentences of imprisonment to run concurrently. Therefore, your final total term will be 2 years’ imprisonment.

[29] Ashwin Chandra Lal, you are now 42 years of age [Your Date of birth is 23 April 1979]. You are said to be married with 2 children, who are 14 and 16 years of age. You say you are a farmer by occupation and the sole bread-winner of your family.

[30] You have submitted that your mother had passed away in September 2021 and that you could not attend her funeral since you were in custody. Your father is said to be ill having suffered a stroke. You say that you have 3 younger sisters who are all waiting in anticipation for your release from custody to take care and support them.

[31] Ashwin Chandra Lal, you have admitted to the Summary of Facts and taken full responsibility for your actions. You submit that you are truly remorseful of your actions and sought forgiveness from this Court. You assure Court that you will not re-offend and that you are willing to reform.

[32] However, Ashwin Chandra Lal, you are a serial offender. As per the Antecedent Report filed, there are over 60 previous convictions recorded against your name, out of which at least 7 previous convictions were committed over the past 10 years.

[33] I find that on 12 May 2020 you were sentenced by the Magistrate’s Court of Suva, to 10 months imprisonment, for the offences of Criminal Trespass, contrary to Section 387 (1) (a) of the Crimes Act, and Theft, contrary to Section 291 of the Crimes Act [Magistrate’s Court of Suva Criminal Case No. CF 567 of 2020].

[34] Furthermore, on 15 December 2021, you were sentenced by the Magistrate’s Court of Suva, to over 8 month’s imprisonment, for the offence of Obtaining a Financial Advantage By Deception, contrary to Section 318 of the Crimes Act [Magistrate’s Court of Suva Criminal Case No. 1704 of 2020].

[35] Section 24 of the Sentencing and Penalties Act reads thus:

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[36] Ashwin Chandra Lal, you were arrested for this case on 30 March 2020 and was remanded into custody. Thereafter, as stated earlier, on 12 May 2020 you were sentenced by the Magistrate’s Court of Suva, to 10 months imprisonment in Magistrate’s Court of Suva Criminal Case No. CF 567 of 2020. When reading the sentence of the Learned Resident Magistrate in that case it is stated that he has taken into consideration and discounted the time you spent in remand as 1 month and 1 week. Thus, you were serving this sentence (of 8 months and 3 weeks) until January 2021.

[37] Thereafter, I find that the Learned Resident Magistrate Suva has taken into consideration your remand period as from 4 November 2020 to 15 December 2021, when he sentenced you on 15 December 2021, in Magistrate’s Court of Suva Criminal Case No. 1704 of 2020.

[38] Therefore, I am not in a position to grant you any further discount for time spent in remand for this case, in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[39] Considering all the above, I sentence you to 2 years’ imprisonment, with a non-parole period of 18 months’ imprisonment. I order that this term of imprisonment would be concurrent to the prison sentence you are currently serving for Magistrate’s Court of Suva Criminal Case No. 1704 of 2020.

[40] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 11^th Day of February 2022

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : 2^nd Accused Appears in Person.