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State v E.B [Juveniles] - Sentence/Punishment [2024] FJHC 383; HAC165.2023 (24 June 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


Criminal Case No.: HAC 165 of 2023


STATE


V


E.B, L.Q [Juveniles]
and
KAMINIELI SOBOBURE [Accused]


Counsel : Mr. J. Nasa for the State.
: Ms. S. Shafique for the First Juvenile and the Accused.
Mr. P. Chand for the Second Juvenile.
Mr. N. N. Wara for and on behalf of the Social Welfare Department.

Date of Submissions : 19 June, 2024
Date of Punishment/Sentence : 24 June, 2024


PUNISHMENT/ SENTENCE


(The names of the Juveniles are suppressed they will be referred to as “E.B”, and “L.Q” respectively)


  1. The juveniles and the accused are charged by virtue of the following consolidated information filed by the Director of Public Prosecutions dated 6th May, 2024:

FIRST COUNT

Statement of offence

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

Particulars of Offence

E.B, L.Q and KAMINIELI SOBOBURE between the 4th day of August, 2023 and 9th day of August, 2023 at Ba in the Western Division, entered into the house of KAMA SERU as trespassers, with the intent to commit theft therein.


SECOND COUNT

Statement of offence

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

Particulars of Offence

E.B, L.Q and KAMINIELI SOBOBURE between the 4th day of August, 2023 and 9th day of August, 2023 at Ba in the Western Division, dishonestly appropriated; 1 x Fijian mat valued at $80.00 and 1 x Masi (tapa) valued at $400.00 the property of KAMA SERU with intent to permanently deprive KAMA SERU of his property.


  1. On 24th May, 2024 the first juvenile in person and the accused in the presence of his counsel pleaded guilty to both counts. Thereafter on 29th May, 2024 the second juvenile pleaded guilty to both counts in the presence of his counsel and on the same day both the juveniles and the accused admitted the summary of facts read n explained to them in their preferred Itaukei language.
  2. The summary of facts was as follows:
    1. On 5th August 2023, PW1 noticed that certain items were missing from his house. PW1 had attended a funeral and brought home some mats which were missing. PW1 then checked his house and noticed that two louver blades were removed and one steel rod lining was also removed. PW1 noticed the following items missing:
      • 1 x Fijian mat valued at $80.00;
      • 1 x Fijian masi valued at $400.00.
    2. Investigation was carried out the accused and both juveniles were arrested and interviewed under caution. Both the juveniles and the accused admitted committing the offences in the company of each other.
  3. After considering the summary of facts read by the state counsel which was admitted by both the juveniles and the accused this court is satisfied that both the juveniles and the accused have entered an unequivocal plea of guilty on their freewill.
  4. This court is also satisfied that both the juveniles and the accused 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 committed. The juveniles and the accused admitted committing the offences in the company of each other.
  5. In view of the above, this court finds both the juveniles and the accused guilty as charged with the accused convicted accordingly. Both counsel filed punishment and mitigating submissions for which this court is grateful. Mr. Wara on behalf of the Social Welfare Department filed pre-punishment reports for the two juveniles for which this court is grateful.
  6. The learned counsel for both juveniles and the accused presented the following mitigation and personal details:

Juvenile E.B


  1. He was 17 years at the time of the offending;
  2. Student at Pacific Polytech;
  1. First and young offender in conflict with the law;
  1. Early guilty plea;
  2. Remorseful for his actions;
  3. Takes responsibility for his actions;
  4. Seeks forgiveness from the court and the complainant;
  5. Cooperated with the police during investigations;
  6. Recovery of stolen items;
  7. Saved the court’s time and resources;
  8. Promises not to reoffend.

Juvenile L.Q


a) The juvenile was 15 years of age at the time;

b) First and young offender in conflict with the law;

c) Student at Pacific Polytech;

d). Resides with his father and 3 siblings;

e). Co-operated with the police;

  1. Full recovery of stolen items;
  2. Pleaded guilty at the earliest opportunity;
  3. Is remorseful for his actions;
  4. Regrets what he has done;
  5. Promises not to reoffend;
  6. Seeks the court’s leniency;
  7. Saved the court’s time.

Accused –Kaminieli Sorobure


  1. The accused was 18 years at the time;
  2. First offender;
  1. Resides with his parents;
  1. Co-operated with the police;
  2. Full recovery of stolen items;
  3. Pleaded guilty at the earliest opportunity;
  4. Is remorseful for his actions;
  5. Regrets what he has done;
  6. Promises not to reoffend;
  7. Seeks the court’s leniency;
  8. Saved the court’s time.

TARIFF


  1. The maximum penalty for the offence of aggravated burglary is 17 years imprisonment. The Court of Appeal in Avishkar Rohinesh Kumar and Another vs. The State [2022] FJCA 164; AAU 117 of 2019 (24 November, 2022) has established a new tariff for the offence of aggravated burglary by dividing the harm caused or intended in three categories from paragraphs 74 and 77 of its judgment as follows:

[74] In terms of section 125(1) of the Coroners and Justice Act 2009 (UK) every court must, in sentencing an offender, follow any sentencing guideline and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so. However, in Fiji section 4(2)(b) states that a sentencing court must have regard to inter alia any applicable guideline judgment. Therefore, the sentencing judges in Fiji are not compelled by law to follow sentencing guidelines but is obliged to have regard to them. Therefore, the sentencing judges in Fiji enjoy greater freedom and wider discretion in sentencing offenders after having regard to the guidelines.

[75] As the first step, the court should determine harm caused or intended by reference to the level of harm in the offending to decide whether it falls into High, Medium or Low category. The factors indicating higher and lower culpability along with aggravating and mitigating factors could be used in the matter of deciding the sentencing range. This would allow sentencers wider discretion and greater freedom to arrive at an appropriate sentence that fits the offending and the offender.

Determining the offence category

The court should determine the offence category among 01-03 using inter alia the factors given in the table below:

Factors indicating greater harm
Theft of/damage to property causing a significant degree of loss to the victim (whether economic, commercial, sentimental or personal value)
Soiling, ransacking or vandalism of property
Restraint, detention or gratuitous degradation of the victim, which is greater than is necessary to succeed in the burglary. Occupier or victim at home or on the premises (or returns home) while offender present
Significant physical or psychological injury or other significant trauma to the victim beyond the normal inevitable consequence burglary.
Violence used or threatened against victim, particularly the deadly nature of the weapon
Context of general public disorder
Factors indicating lesser harm
Nothing stolen or only property of very low value to the victim (whether economic, sentimental or personal). No physical or psychological injury or other significant trauma to the victim
Limited damage or disturbance to property. No violence used or threatened and a weapon is not produced


[76] Once the level of harm has been identified, the court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they plead guilty or not guilty and irrespective of previous convictions. A case of particular gravity, reflected by multiple features of harm, could merit upward adjustment from the starting point before further adjustment for level of culpability and aggravating or mitigating features.


LEVEL OF HARM
(CATEGORY)
BURGLARY (OFFENDER ALONE AND WITHOUT A WEAPON)
AGGRAVATED BURGLARY (OFFENDER EITHER WITH ANOTHER
OR WITH A WEAPON)
AGGRAVATED
BURGLARY
(OFFENDER WITH ANOTHER AND
WITH A WEAPON)
HIGH
Starting Point:
05 years
Sentencing Range:
03–08 years
Starting Point:
07 years
Sentencing Range:
05–10 years
Starting Point:
09 years
Sentencing Range:
08–12 years
MEDIUM
Starting Point:
03 years
Sentencing Range:
01–05 years
Starting Point:
05 years
Sentencing Range:
03–08 years
Starting Point:
07 years
Sentencing Range:
05–10 years
LOW
Starting Point:
01 year
Sentencing Range:
06 months – 03 years
Starting Point:
03 years
Sentencing Range:
01–05 years
Starting Point:
05 years
Sentencing Range:
03–08 years


[77] The following table contains a non-exhaustive list of higher and lower culpability factors relating to the offending. Any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.


Factors indicating higher culpability
Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation) or victim compelled to leave their home (in particular victims of domestic violence).
Child or the elderly, the sick or disabled at home (or return home) when offence committed
A significant degree of planning, or organization or execution. Offence committed at night.
Prolonged nature of the burglary. Repeated incursions. Offender taking a leading role.
Equipped for burglary (for example, implements carried and/or use of vehicle)
Member of a group or gang
Factors indicating lower culpability
Offence committed on impulse, with limited intrusion into property or little or no planning
Offender exploited by others or committed or participated in the offence reluctantly as a result of coercion or intimidation (not amounting to duress) or as a result of peer pressure
Mental disorder or learning disability, where linked to the commission of the offence


[78] The following table contains a non-exhaustive list of aggravating and mitigating factors relating to the offender. Any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.


Factors increasing seriousness
Factors reducing seriousness or reflecting personal mitigation
Statutory aggravating factors:
Genuine remorse displayed, for example the offender has made voluntary reparation to the victim
Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
Subordinate role in a group or gang
No previous convictions or no relevant/recent convictions.
Offence committed whilst on bail or parole.
Cooperation with the police or assistance to the prosecution
Other aggravating factors include:
Good character and/or exemplary conduct
Any steps taken to prevent the victim reporting the incident or obtaining assistance and/or from assisting or supporting the prosecution
Determination, and/or demonstration of steps taken to address addiction or offending behavior
Established evidence of community impact
Serious medical conditions requiring urgent, intensive or long-term treatment
Commission of offence whilst under the influence of alcohol or drugs
Age and/or lack of maturity where it affects the culpability and responsibility of the offender
Failure to comply with current court orders
Lapse of time since the offence where this is not the fault of the offender
Offence committed whilst on licence
Mental disorder or learning disability, where not linked to the commission of the offence
Offences Taken Into Consideration (TICs)
Any other relevant personal considerations such as the offender being sole or primary care giver for dependent relatives or has a learning disability or mental disorder which reduces the culpability

  1. For the offence of theft the maximum penalty is 10 years imprisonment. The tariff for the offence of theft is settled. In Mikaele Ratusili v. State, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft as follows:

“(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.”


AGGRAVATING FACTORS


  1. The following aggravating factors are obvious:
    1. Property Invasion

The juveniles and the accused did not have any regard for the property rights of the owner. They were bold and undeterred in what they did in the company of each other.


  1. Prevalence of the offending

There has been an increase in such offending that people are reluctant to leave their properties vacant.


  1. Planning

There is a degree of planning by the juveniles and the accused they knew what each had to do at the time of the offending.


  1. Furthermore, both the juveniles fall under special categorization than adults when it comes to punishment under section 30(3) of the Juveniles Act as young persons which prescribes the maximum punishment for young persons at 2 years imprisonment.

SOCIAL WELFARE REPORT

  1. As per the order of this court the Social Welfare Department prepared a re-punishment report for the first and second juveniles.
  2. The Social Welfare Department conducted face to face interviews with the juveniles and their next of kin before compiling a pre-punishment report.

15. The Social Welfare Department recommends the following:


  1. The juveniles be given a second chance in life;
  2. Be allowed to continue their education, attend counselling services and be part of rehabilitation programs and supervision.

FAMILY SUPPORT


  1. The mother of the first juvenile and the grandmother of the second juvenile were present and they pledged their full support for the juveniles. They admitted it was due to lack of proper parenting and supervision the juveniles went on the wrong path. However, they have seen positive changes in the juveniles. The mother and the grandmother of the juveniles assured the court that they will continue with their supervision, guidance and support of the juveniles.
  2. As a sign of his commitment the mother and grandmother are happy to enter into a bond of $500.00 each and are willing to participate in any programs the Social Welfare Department may wish the family to be part of with the juveniles.

DETERMINATION


18. 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.”


19. Taking into account section 17 of the Sentencing and Penalties Act I

prefer to impose an aggregate punishment for both counts.


  1. Considering the minimum value of the items stolen, recovery of the stolen items and minimum damages to the properties where the burglary took place the level of harm caused to the complainant will fall under low category of harm which has a sentencing range of 1 year to 5 years imprisonment.
  2. After taking into account the objective seriousness of the offences committed I select 1 year imprisonment (lower range of the tariff) as the aggregate punishment for both counts. The punishment is increased for the aggravating factors, but reduced for mitigation and early guilty plea. Both the juveniles were not in remand or detention hence no further reduction will be given. The accused was in remand for 1 month and 19 days the punishment is reduced accordingly.
  3. The final aggregate punishment for both counts for the juveniles 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.
  4. 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 paragraph 23:


“[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."


  1. 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 punishment.


  1. The juveniles are young persons as per the Juveniles Act (15 to 17 years of age at the time of the offending), are of good character, isolated offences were committed by them, have pleaded guilty at the earliest opportunity, are remorseful, cooperated with police and they take full responsibility for their actions. These special reasons render an immediate imprisonment term inappropriate.
  2. I am sure the juveniles with family and parental guidance, supervision and support have a bright future ahead of them hence an imprisonment term will not augur well for him. In view of the above, this court has taken into account rehabilitation over and above deterrence. Section 30 (3) of the Juveniles Act also imposes a limit on the punishment of young persons for a maximum of two years imprisonment.

27. Having considered section 4 (1) of the Sentencing and Penalties Act this

court is of the view that this punishment is just in all the circumstances of this case.


  1. In summary both juveniles are given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for both counts which is suspended for 3 years. The effect of the suspended sentence is explained to the juveniles. For the second juvenile the imprisonment term is concurrent to HAC 194 of 2023 including the term of suspension which is 3 years for this file and the other file. The following orders are to take effect immediately.

ORDERS


  1. The first and second juveniles are given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for the two counts mentioned in the information which is suspended for 3 years with immediate effect. For the second juvenile the imprisonment term is concurrent to HAC 194 of 2023 including the term of suspension which is 3 years for this file and the other file.
  2. The mother of the first juvenile namely Laite Wati is to sign a good behaviour bond on behalf of the juvenile in the sum of $500.00. The grandmother of the second juvenile is also to sign a good behaviour bond on behalf of the juvenile in the sum of $500.00;
  1. The Social Welfare Department is to immediately arrange for the counseling of the juveniles in the presence of their family members with the view to assist them in keeping out of peer group influence and to engage in education and training;
  1. The Social Welfare Department is also at liberty to work out any plans or programs that will be in the interest of both the juveniles;
  2. It is the responsibility of the parents/family members of both the juveniles to ensure that the juveniles obey any directions given by the Social Welfare Department;
  3. The Social Welfare Department may provide any assistance and counseling to the parental/family/next of kin of both the juveniles in improving his parenting skills towards the welfare of the juveniles;
  4. A copy of this punishment is to be served on the Officer in Charge of the Department of Social Welfare.

ACCUSED


  1. Considering the objective seriousness of the offences committed I select 12 months imprisonment at the lower range of the sentence. The sentence is increased for the aggravating factors and reduced for the early guilty plea, mitigation, good character, genuine remorse and the remand period of 1 month and 19 days.
  2. The final aggregate sentence for both counts is 2 years, 6 months and 11 days imprisonment. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspended the final sentence since it does not exceed 3 years imprisonment.
  3. The accused is a first offender of comparatively good character, isolated offences have been committed, he was 18 years of age at the time, pleaded guilty at the earliest opportunity, was remorseful, cooperated with police and takes responsibility for his actions. I consider these special reasons as rendering immediate imprisonment term inappropriate.
  4. The accused has been in remand for 1 month and 19 days which is in itself an adequate and appropriate punishment, an experience that will remind him of his misdeeds and act as a motivation to keep away from trouble. This court has taken rehabilitation over and above retribution.
  5. In summary the accused is sentenced to 2 years, 6 months and 11 days imprisonment which is suspended for 3 years. The effect of suspended sentence is explained to the accused.
  6. The juveniles and the accused have 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

At Lautoka
24 June, 2024


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

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