State v Vatunitu - Sentence [2023] FJHC 358; HAC371.2022 (1 June 2023)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 371 OF 2022

STATE

V

ESALA VATUNITU
ILAITIA NAIVUA

Counsel: Mr L Baleilevuka for the State

Mr J Buakula for both Accused

Date of Hearing: 5 May 2023

Date of Sentence: 1 June 2023

SENTENCE

[1] Both accused appear for sentence after pleading guilty to one count each of aggravated burglary and theft.

[2] The facts are that on 29 October 2022 at around 2.30 pm, both accused entered a dwelling house at Pacific Habour with the intention to steal. At the time, the occupants were not present. The family had gone out for a day picnic.

[3] Both accused hired a taxi from Navua and arrived at the targeted home. They told the taxi driver to wait for them at the driveway. Both accused entered the compound and gained entry to the house through the window after removing louver blades. After gaining entry they took a smart TV, a phone charger, three backpacks and some groceries from the house. They fled the scene in their hired taxi. The total value of stolen items was around $4000.00. They sold some items and bought liquor and consumed it.

[4] Both accused were arrested and interviewed under caution. They admitted the allegations. The stolen TV had been recovered.

[5] At the time of the offending both accused were 29 years of age. Esala is married with three children and his wife is expecting their fourth child.

[6] Ilaitia is in a de-facto relationship and has two children from that relationship. He had a full time employment as a security guard at the time of the offending.

[7] Some planning was involved to commit the crime but the planning was not significant. The occupants were not present when the intrusion occurred. The house was not ransacked or damaged. The only aggravating factor is the statutory aggravation, that is, the offence was committed in a company.

[8] The mitigating factors are the offenders’ guilty pleas, expression of remorse, cooperation with the police and the partial recovery of the stolen property. The guilty pleas have saved court’s time and resources.

[9] Both accused have relevant previous convictions for similar offences. They are not entitled for any credit for their character as a mitigating factor.

[10] The maximum penalty for aggravated burglary is 17 years imprisonment while the maximum penalty for theft is 10 years imprisonment. I adopt the guidelines for sentencing in aggravated burglary cases enunciated by the Court of Appeal in Kumar & Vakatawa v State Criminal Appeals No AAU33 of 2018 and AAU117 of 2019.

[11] The Kumar guidelines require the sentencing court to first assess the level of harm caused by the offence and then determine the applicable starting point and sentencing range. In this case, the parties agree that the level of harm is low and the applicable starting point is 3 years imprisonment and the sentencing range is 1-5 years imprisonment.

[12] Both offences are founded on the same facts. For both accused I use an aggregate term of 3 years imprisonment as my starting point and deduct 1 year to reflect the mitigating factors.

[13] Both accused are convicted and sentenced to an aggregate term of 2 years imprisonment. I have considered but have decided not to suspend the sentence. Both accused have not learnt from the suspended sentences imposed for previous offending. The main purpose of sentence for them is deterrence. The community must feel safe from anti-social behavior involving intrusion in people’s privacy and homes.

[14] Both accused have already served 7 months in custody on remand. The remaining term for them to serve is 1 year 5 months imprisonment.

[15] Recovered stolen property is restored to the owner.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for both Accused