State v Naeqe - Sentence/Punishment [2022] FJHC 87; HAC126.2021 (8 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 126 of 2021

STATE

V

1. SETAREKI NAEQE
2. K.W.S.C [Juvenile]

Counsel : Ms. S. Naibe for the State.
: Ms. E. Radrole for the Accused and the Juvenile.

: Mr. N.N. Wara for and on behalf of the Social Welfare Department.

Date of Punishment
Hearing : 03 February, 2022
Date of Submissions : 07 February, 2022
Date of Sentence and
Punishment : 08 February, 2022

SENTENCE/PUNISHMENT

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

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 29^th December, 2021:

FIRST COUNT

Statement of offence

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

Particulars of Offence

SETAREKI NAEQE and K.W.S.C on the 25^th day of October, 2021 at Tavua in the Western Division, in the company of each other, entered as trespassers into the premises of TAVUA DISTRICT SECONDARY SCHOOL, with intent to commit theft.

SECOND COUNT

Statement of offence

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

Particulars of Offence

SETAREKI NAEQE and K.W.S.C on the 25^th day of October, 2021 at Tavua in the Western Division, in the company of each other, dishonestly appropriated (stole) 1 x Stand Fan and 10 x Bars of soap, the properties of TAVUA DISTRICT SECONDARY SCHOOL with the intention of permanently depriving the said TAVUA DISTRICT SECONDARY SCHOOL of the said properties.

THIRD COUNT

Statement of offence

FAILURE TO COMPLY WITH ORDERS: Contrary to section 69 (1) (c) and 3 (c) of the Public Health Act 1935 and section 2 of the Public Health (Infectious Diseases) Regulation 2020.

Particulars of Offence

SETAREKI NAEQE and K.W.S.C on the 25^th day of October, 2021 at Tavua in the Western Division, without lawful excuse, failed to comply with an order of the Permanent Secretary for Health and Medical Services namely by breaching the curfew hours which was set in place for the protection of public health.

2. On 29^th December, 2021 the juvenile pleaded guilty to the above counts in the presence of his counsel. Thereafter on 31^st December, 2021 the juvenile was read and explained the summary of facts in the Itaukei language which he admitted. On 19 January, 2022 the accused pleaded guilty to the above counts in the presence of his counsel. Thereafter on 25^th January, 2022 the accused admitted the summary of facts read and explained to him.
   
3. 3. The brief facts were as follows:

Accused: Setareki Naeqe, 18 years old, Unemployed of Tavualevu village, Tavua (herein after referred as “A1”).

Juvenile: K.W.S.C, 15 years old, Student of Tavualevu village, Tavua (herein after referred as “J1”).

Complainant

Avinesh Nand Goundar, 42 years old, Principal of Wairuku Rakiraki (herein after referred as PW1).

Briefly on 27^th October 2021, one Salanieta Waqa (herein after referred as PW2) discovered that a fan and bars of soap were missing from her office. PW2 informed PW1 of the missing items after which PW1 and PW2 viewed the CCTV footage of the school of 25^th October, 2021 whereby they saw Itaukei boys entering the school premises and stealing a stand fan and bars of soap in the night time.

The matter was reported to the police after which the accused with another was arrested. The police was able to recover one bar of soap and a stand fan which was later shown to PW1. PW1 confirmed that the recovered items were properties of the school which was kept in the school office.

1. The accused was interviewed under caution and he admitted to committing the offences. the admissions are as follows:
   
   • A1 stated that they went straight to Assistant Principals office (Q&A 41).
   • When asked what was the purpose of going to the Assistant Principals office the accused admitted that they went to steal the soap which had been seen lying beside the louvers (Q&A 42).
   • They entered the Assistant Principals office through the door which was not securely locked (Q&A 44).
   • They stole bars of soap and a stand fan (Q&A 45).
   • The stand fan was sold to one Sereana Malai of Tavualevu Village (Q&A 48).
     
2. The juvenile was interviewed under caution and he admitted to committing the offences as follows:
   
   • J1 stated that around 11pm on 25/10/21, he was roaming around the village with friends (Q&A 25-28).
   • JI and friends decided to enter the school (Q&A 30).
   • They went into the school through the fence since there was a gap and they went through the fence because it was already curfew hours (Q&A 32-33).
   • JI with another decided to steal some of the properties belonging to the school (Q&A37).
     
3. In summary the accused and the juvenile in the company of each other forcefully entered the premises of Tavua District Secondary School and stole bars of soap and a stand fan the properties of Tavua District Secondary School. Both the accused and the juvenile stole the items during the curfew hours without any lawful excuse contrary to an order of the Permanent Secretary for health and Medical Services which was in place for the protection of public health.

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, theft and failure to comply with orders 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 mitigating submissions for which this court is grateful.
   
7. The three offences with which the accused and the juvenile have been convicted and found guilty respectively 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 – SETAREKI NAEQE

a) The accused is a first offender;

b) 18 years of age;

c) He lives with his parents and four siblings;

d) Is a Year 12 Student;

e) Pleaded guilty at the earliest opportunity;

f) Genuinely remorseful;

g) Substantial recovery of stolen items;

h) Cooperated with police.

Juvenile – K.W.S.C

a) The juvenile was 15 years of age;

b) Young and first offender;

c) Year 9 student;

d) Now resides with his parents;

e) Cooperated with police;

f) Pleaded guilty at the earliest opportunity;

g) Genuinely remorseful for what he has done;

h) Substantial recovery of stolen items.

TARIFF

10. The maximum penalty of 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 Leqavuni v. State, nal Appe Appeal No. AAU 106 of 2014 (26 February, 2016).
    
12. For the offence of theft the maximum penalty is 10 years imprisonmisonment.
    
13. The tariff for the offence of theft is settled. In Mikaatusili v. State,

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

<out the tariff for theft as follows:

(ii) any subsequent offencffence should attract a penalty of at leasonths.

(iii) 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.”

14. For the offence of failure to comply with orders the maximum penalty is a fine not exceeding $10,000.00 or imprisonment term not exceeding 5 years or both fine and imprisonment. The current sentencing trend for this offence is a suspended sentence and a fine (see Viliame Raituku and others, criminal case no. HAC 158 of 2020 (23 February, 2021)

AGGRAVATING FACTORS

15. The following aggravating factors are obvious:
    
    1. Night time invasion of property

It was during the night the accused and the juvenile forcefully entered the school property. They were bold and undeterred.

2. Planning

There is some degree of planning involved the accused and the juvenile knew there was no one around and they forcefully entered the school office.

100. Prevalence of the offence

The offences committed are very prevalent nowadays that people are reluctant to leave their properties unattended.

16. For this case two different sentencing regime applies hence for completeness the sentence for the accused will be considered separately from the juvenile.
    

ACCUSED

17. 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.
18. 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. I note from the court file that the accused has been remanded for 2 months and 27 days in accordance with section 24 of the Sentencing and Penalties Act I further reduce the sentence as a period of imprisonment already served.
    
19. The final aggregate sentence for the three 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.
    
20. 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."

21. 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.
    
22. 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, 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.
    
23. This court has taken into account rehabilitation over and above retribution.
    
24. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that the sentence is just in all the circumstances of the case.
    
25. In summary the accused is sentenced to 2½ years’ imprisonment as an aggregate sentence for the three offences which is suspended for 3 years. The accused is also fined $60.00 in default 21 days imprisonment. The effect of suspended sentence is explained to the accused.
    

PUNISHMENT – JUVENILE

SOCIAL WELFARE REPORT

26. As per the order of this court the Social Welfare Department, Tavua conducted a home assessment and interviews before compiling a pre-punishment report for the juvenile.
    
27. The Social Welfare Department recommends the following for the juvenile that:
    1. The juvenile stay with his parents;
    2. The juvenile be given a second chance;
    100. A Probation Officer be appointed.
         

PARENTAL SUPPORT

28. The parents of the juvenile were in court. They have pledged their support for their son. The parents of the juvenile assure the court that they will play a more active role in the life of their son. The juvenile’s father is a farmer and is able to earn about $8,000.00 per annum and he also has an additional income from selling vegetables to the middlemen. The juvenile’s mother is also self-employed she sells food parcels and is able to earn about $30.00 per day.
    
29. The juvenile is also taking responsibility for his actions, is remorseful and promises not to be in conflict with the law again. The parents of both the juvenile have (as part of their commitment) agreed to pay compensation to the victim in the sum of $50.00 and be bonded in respect of the good behaviour of their son in the sum of $350.00. The parents are also willing to pay a fine of $60.00 for their neglect in ensuring that their son is well supervised and not be violating the curfew hours in place.
    
30. Considering the objective seriousness of the offences committed I select 18 months imprisonment (lower range of the tariff) as the aggregate punishment for the three offences. The punishment is increased for the aggravating factors and reduced for mitigation, good character and early guilty plea which I consider to be genuine. The juvenile was not in detention since he was granted bail on the same day he appeared in court.
    
31. The final aggregate punishment for the three offences 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.
    
The following relevant special circumstancespecial reasons for the suspension of the imprisonment term in my view needs to be weighed ihed in choosing an immediate imprisonment or a suspended punishment.

33. The juvenile is young person as per the Juveniles Act, he is of good character, isolated offences were committed by him, he wayears of age at the time ofme of the offending, pleaded guilty at the earliest opportunity, is genuinely remorseful, cooperated with police and he takes full responsibility of his actions. These special reasons render immediate imprisonment inappropriate.
    
34. I am sure the juvenile with parental and family guidance, supervision and support has a bright future ahead of him hence an imprisonment term will not augur well for his future, the juvenile has been in police custody which is in itself an adequate and appropriate punishment, an experience that will remind him to keep away from trouble. This court has taken into account rehabilitation over and above deterrence.
    
35. 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.
    
36. Let me remind the juvenile that leading a life within the boundaries of criminal activities do not assist it only takes a person deeper and deeper into a world of uncertainty and misery. The society does not condone such activities and this court also denounces such behaviour.
    
37. This is an opportunity for the juvenile to stop entering the world of uncertainty and lead a happy life with their parents and siblings. The only reason why the punishment is lenient is because section 30 (3) of the Juveniles Act imposes a limit on the punishment of young persons.
    
38. In summary the juvenile is given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for the three offences which is suspended for 3 years. The effect of suspended sentence is explained. 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 three 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 $350.00. Furthermore, both the parents of juvenile are to pay the sum of $50.00 as compensation to the victim within 21 days from today payable at the Tavua Magistrate’s Court;
   

100. The parents of the juvenile are to pay a fine of $60.00 payable within 21 days from today at the Tavua Magistrate’s Court;
     

4. 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 an d to engage in education and training;
   
5. The Social Welfare Department is also at liberty to work out any programs or plans including the appointment of a Probation Officer which will be in the interest of the juvenile;
   
6. It is the responsibility of the parents of the juvenile to ensure that the juvenile obeys any directions given by the Social Welfare Department;
   
7. A copy of this punishment is to be served on the Officer in Charge of the Social Welfare Department, Tavua;
   
   8. 30 days to appeal to the Court of Appeal.
      

Sunil Sharma

Judge

At Lautoka
08 February, 2022

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