State v Gadre - Sentence [2022] FJHC 771; HAC357.2017S (25 November 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 357 OF 2017S

STATE

vs

INOKE GADRE

Counsels : Ms. U. Tamanikaiyaroi for State.
Ms. N. Mishra for Accused.
Hearings : 23 March, 8 May and 26 June, 2020.
Sentence : 25 November, 2022.

SENTENCE

1. On 23 March 2020, in the presence of his counsel, the following counts in the following information were read over and explained to the accused:
   

“Count One

Statement of Offence

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

Particulars of Offence

INOKE GADRE with another on the 3^rd day of July, 2015 at Nasinu, Suva in the Central Division entered United Pacific (Fiji) Limited, the property of FARAAZ KHALIL as trespassers with intent to commit theft in the said United Pacific (Fiji) Limited.

Count Two

Statement of Offence

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

Particulars of Offence

INOKE GADRE with another on the 3^rd day of July, 2015 at Nasinu, Suva in the Central Division dishonestly appropriated properties belonging to FARAAZ KHALIL namely $550.00 worth of coins, the property of FARAAZ KHALIL with the intention to permanently deprive FARAAZ KHALIL of the said property.

Count Three

Statement of Offence

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

Particulars of Offence

INOKE GADRE with another on the 12^th day of June, 2017 at Nasinu, Suva in the Central Division entered into the property of MERESEINI NAVELA as trespasser with intent to commit theft.

Count Four

Statement of Offence

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

Particulars of Offence

INOKE GADRE with another on the 12^th day of June, 2017 at Nasinu, Suva in the Central Division dishonestly appropriated 1 x Samsung Note 5 mobile phone valued at $2,000.00, 2 x Whales tooth valued at $800.00, 1 x ladies handbag valued at $80.00, 1 x Nokia mobile phone valued at $159.00, $240.00 cash and 1 x spare key valued at $500.00, all the total value of $3, 779.00, the property of MERESEINI NAVELA with the intention to permanently deprive MERESEINI NAVELA of the said property.”

2. He said, he understood the four counts in the information, and he pleaded guilty to the same. The matter was then adjourned to 8 May 2020 to enable the prosecution to prepare the summary of facts. On 8 May 2020, the prosecution read the summary of facts in court.
   
3. Briefly the facts were as follows. The complainant in count no. 1 and 2 was Mr. Faraaz Khalil. He was 29 years old and a director of United Pacific (Fiji) Limited, of Aurora Avenue, Makoi. The accused was 25 years old, unemployed of Reba Circle, Nadera. According to the prosecution, the accused went to the United Pacific (Fiji) Limited office at 1 pm on 2 July 2015. The accused used to work there in 2008. He went to the office to check out the layout of the same before he broke into the same.
   
4. According to the prosecution, he was planning to break into the office that night. Between 8 pm on 2 July and early morning on 3 July 2015, the accused and another broke into the office. The accused broke into a window and climbed into the office with his friend. According to the prosecution, the accused and his friend ransacked the office and stole $550 therefrom. They later fled from the crime scene. At 8.10 am on 3 July 2015, the complainant discovered that his office had been broken into and $550 was stolen. The matter was reported to the police. An investigation was carried out. On 6 July, 2015, the accused was arrested and caution interviewed by police. He admitted the offences to police. However, the $550 were not recovered.
   
5. As for count no. 3 and 4, the complainant was Ms. Mereseini Navela. She was 29 years old. She was also a director of United Pacific (Fiji) Limited of Aurora Avenue, Makoi. According to the prosecution, the complainant awoke in her residence in the early hours of the morning on 12 June 2017. Her residence was at Maqbool Road, Nadera. She noticed that her bedroom window had been broken into and someone had entered her house through the window. The window was also the point of exit for the person. She later found that her house was ransacked and the items listed in count no. 4 of the information had been stolen. She reported the matter to police. An investigation was carried out. On 28 June 2017, the accused was arrested by police. He was caution interviewed by police on 1 July 2017 at Valelevu Police Station. During the interview, he admitted the offences to the police. It appeared the complainant’s stolen properties were not recovered.
   
6. The court then checked with the accused whether or not he admitted the summary of facts. Through his counsel, the accused admitted the above summary of facts. As a result of the above admission, the court found the accused guilty as charged on count no. 1, 2, 3 and 4 of the information, and convicted him accordingly on those counts.
   
7. The accused admitted he had 6 previous convictions of burglary, three thefts, damaging property and aggravated robbery. The previous convictions were dated between 18 March 2011 to 1 February 2013. The matter was then adjourned to 26 June 2020 to enable the accused to prepare his plea in mitigation. On 26 June 2020, the accused, through his counsel, presented his written plea in mitigation. He was 30 years old, with a defacto wife and a 7 year old daughter. He pleaded guilty 2 years 3 months 22 days after first call in the High Court.
   
8. “Aggravated burglary” is an indictable offence, and viewed seriously by the Parliament of Fiji. It carried a maximum sentence of 17 years imprisonment (see section 313 (1) (a) of the Crimes Act 2009). The tariff is now a sentence between 6 to 14 years imprisonment: State v Shavneel Prasad, Criminal Case No. 254 of 2016S, High Court, Suva and State v John Vonu & Others, Criminal Case No. HAC 148 of 2017S, High Court, Suva. Of course, the final sentence will depend on the aggravating and mitigating factors.
   
9. The maximum penalty for “theft”, contrary to section 291 (1) of the Crimes Act 2009, is a sentence of 10 years imprisonment.
   
10. The aggravating factors in this case was first, preplanning by the accused with others to commit the offences. Second, he showed total disregard for the complainants’ property rights. Thirdly, the complainants’ properties were not recovered.
    
11. The mitigating factors were as follows. Firstly, although it took him 2 years 3 months 22 days from first call in the High Court to plead guilty, he nevertheless saved some court time in doing so. Second, he was remanded in custody from 27 April 2018 to 11 July 2019, when he was imprisoned for 25 months. He was remanded for 1 year 3 months approximately.
    
12. Before sentencing the accused, the question arises whether or not the court should classify him as a “habitual offender”, in terms of section 10 and 11 of the Sentencing and Penalties Act 2009. Section 10 abovementioned reads as follows:

“ ...This Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for –

(a) a sexual offence;
(b) offences involving violence;
(c) offences involving robbery or housebreaking;
(d) a serious drug offence; or
(e) an arson offence...”

Section 11 abovementioned reads as follows:

“ 11 ...(1) A judge may determine that an offender is a habitual offender for the purposes of this Part –

(a) when sentencing the offender for an offence or offences of the nature described in section 10;
(b) having regard to the offender’s previous convictions for offences of a like nature committed inside or outside Fiji; and
(c) if the court is satisfied that the offender constitutes a threat to the community.

(2) The powers under this Part may be exercised by the Court of Appeal and the Supreme Court when hearing an appeal against sentence...”

13. Section 10 (c) of the Sentencing and Penalties Act 2009 applies to robbery or housebreaking offences. Section 11 (b) of the above Act empowers the court to look at the accused’s previous convictions. In this case, the accused has one burglary, one aggravated robbery and three related theft offences previous convictions. At present he is also serving 25 months imprisonment for burglary and theft. The above qualifies him to be classified as a habitual offender and the court does classify him as such.
    
14. Pursuant to section 11 (1) (c) of the Sentencing and Penalties Act 2009, the court had to ask itself whether or not the accused is a threat to the community. In dealing with HAC 357/2017, the prosecution had brought to my notice that the accused had 22 pending criminal cases in the Suva Magistrate Court, 18 of them being burglary and theft type offences while 2 were aggravated robberies. The cases were initiated in 2015, 2016, 2017 and 2018. In Nasinu Magistrate Court, he had 8 pending cases, mostly similar to the above offences and initiated in the same period. He also had 9 pending cases of similar nature and time period in the Nadi Magistrate Court. Although in the above pending cases, he is presumed innocent until proven guilty beyond reasonable doubt, in my view, given his previous convictions, the above pending cases, the present case, he definitely is a threat to the community. In my view, he must be sentenced as a habitual offender.
    
15. Pursuant to section 12 (a) and (b) of the Sentencing and Penalties Act 2009, taking into account the aggravating and mitigating factors, I sentence the accused as follows:
    • (i) Count No. 1: Aggravated Burglary - 10 years imprisonment
    • (ii) Count No. 2: Theft - 4 years imprisonment
    • (iii) Count No. 3: Aggravated Burglary - 10 years imprisonment
    • (iv) Count No. 4: Theft - 4 years imprisonment
      
16. Because of the totality principle of sentencing and the purpose of section 12 (a) and (b) of the Sentencing and Penalties Act 2009, I direct that the sentence in count no. 3 (10 years) to be made consecutive to count no. 4 (4 years), and the sentences in count no. 1 and 2, to be concurrent to the above sentences, making a total sentence of 14 years imprisonment.
    
17. Mr. Inoke Gadre, for offending against the two complainants in count no. 1, 2, 3 and 4 of the information, I sentence you to 14 years imprisonment, with a non-parole period of 10 years, effective forthwith.
    
18. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.