State v Daveta - Sentence [2024] FJHC 610; HAC139.2024 (8 October 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 139 of 2024

STATE

v

NOA DAVETA
HT (Juvenile)

Counsel: Ms. N. Ali for the State
Ms. S. Narayan for the First Accused
Ms. V. Kirti for the Second Accused & Juvenile

Date of Mitigation/Sentencing Hearing: 23^rd September 2024
Date of Sentence: 8^th October 2024

SENTENCE

1. Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) are charged with the following offences laid out as follows in the Consolidated Information dated 12 July 2024 by the Director of Public Prosecutions:
   

COUNT ONE

Statement of Offence

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

Particulars of Offence

NOA DAVETA and HT on the 17^th day of April, 2024 at Samabula in the Central Division, in the company of each other, entered as trespassers into the dwelling house of VIKASHNI DEVI NAND, with intent to commit theft therein.

COUNT TWO

Statement of Offence

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

Particulars of Offence

NOA DAVETA and HT on the 17^th day of April, 2024 at Samabula in the Central Division, in the company of each other, dishonestly appropriated (stole) 1 x black Roxy Bag, 1 x black Samsung Galaxy A04 mobile phone, 1 x white mobile phone charger, 1 x blue and red moneybox containing assorted coins, 1 x 315g Cadbury milk chocolate, and 1 x blue and white floral design round hat, the properties of VIKASHNI DEVI NAND with the intention of permanently depriving VIKASHNI DEVI NAND of the said properties.

COUNT THREE

Statement of Offence

ATTEMPTED ROBBERY: Contrary to section 44(1) and 310(1)(a)(i) of the Crimes Act 2009.

Particulars of Offence

NOA DAVETA on the 17^th day of April, 2024 at Samabula in the Central Division, attempted to rob one NILESHNI KIRAN SHARMA and immediately before attempting to rob the said NILESHNI KIRAN SHARMA, used force on her.

2. Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) pleaded guilty to the aforesaid charges on 2 August 2024 voluntarily and unequivocally, confirmed by their respective Legal Aid lawyers.
   
3. Prosecutor Ms. N. Ali read out the Summary of facts on 19 August 2024, which was admitted by both accused and confirmed by their respective Legal Aid lawyers. The prosecutor also submitted the Antecedent Report for both accused persons. This Court then formally convicted both accused persons of the aforesaid offences.
   
4. On 5 September 2024 both accused persons via their Legal Aid lawyers submitted plea in mitigation and sentencing submissions and responded to by the State prosecutor. This is the Court’s finding on sentence.
   
5. The Antecedent Report for the HT (2^nd accused) show that he is 14 years old and therefore a ‘juvenile’ pursuant to section 57 of the Prisons and Corrections Act 2006, thus the Juveniles Act [Cap56] applies when sentencing the 2^nd accused.
   

Brief facts

6. PW1 Vikashni Devi Nand (43 years) reside at Lot 13 Archee Seeto Road, Salato, Namadi Heights, Suva, in a double storey house occupying the bottom flat with her family while PW2 Nileshni Kiran Sharma (49 years, school teacher) occupy the top flat. On 17 April 2024 at around 7.45am PW1 left her home and went to work, and her 13 year old daughter namely Smeera Kumar remained sleeping inside PW1’s bedroom which was locked from inside. Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) then trespassed and entered PW1’s flat by forcefully unlocking the main door, and while inside PW1’s flat both accused then stole the following items with the total monetary value of $490.99:
   
   1. 1 x Roxy Bag valued at $69;
   2. 1 x black Samsung Galaxy A04 mobile phone and white mobile phone charger valued at $399;
   3. 1 x blue and red moneybox containing assorted coins;
   4. 1 x 315g Cadbury milk chocolate valued at $7.99; and
   5. 1 x blue and white floral design round hat valued at $15.

[Counts 1 & 2 – Aggravated Burglary and Theft]

After stealing the aforesaid items both accused exited PW1’s flat, but Noa Daveta (1^st accused) walked up the stairs leading to PW2’s flat and entered PW2’s flat through the kitchen door. At that moment PW2 was alone inside her flat and her husband and daughter had gone to work. PW2 is a school teacher and had not gone to work that particular day on 17 April 2024 to commemorate the Hindu festival of Ram Naumi. Having entered the kitchen, Noa Daveta (1^st accused) then approached PW2 from behind and covered PW2’s mouth with his hand to prevent PW2 from screaming and at the same time told PW2 not to shout. However, PW2 screamed out loud due to fear and Noa Daveta (1^st accused) pushed PW2 onto the floor and punched PW2’s face several times. PW2 managed to free herself, ran closer to the nearby window and shouted loudly for help causing Noa Daveta (1^st accused) to flee the scene. [ Count 3 – Attempted Robbery ]

PW1’s daughter also woke up due to hearing PW2’s scream and immediately called PW1 via mobile phone informing PW1 that someone is screaming for help. PW1 immediately returned to her flat and noticed that the main door to her flat was forced opened and the abovementioned items stolen from within her flat.

PW2’s scream for help was also heard by PC Wame a police officer based at the Samabula police station and also neighbour to PW1 and PW2 who along with his brother namely Jone Tuikoro saw Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) run from PW1’s and PW2’s residential compound towards Arjun Jiva Road. PC Wame then pursued Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) and apprehended them at the shortcut road along Arjun Jiva Road. PC Wame recognised both accused persons who also stay at Archee Seeto Road, Namadi Heights, Suva, and saw them holding a black bag which bag was then handed over to him by the accused persons. Upon checking the contents of the said bag, PC Wame discovered 2 x packets of chocolate, a black mobile phone, a mobile charger, and a moneybox. PC Wame being assisted by his brother Jone Tuikoro then escorted the accused persons to PW1’s house and thereafter called the police.

Search List – PE1

The police arrived and attended to the scene of the crime. PW1 was shown the items recovered from Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) and she positively identified the said items as belonging to her and stolen from her flat that same morning. The relevant Search List is annexed as PE1.

Medical report of PW2 – PE2

PW2 was medically examined at the Samabula Health Center on 17 April 2024, and at D(12) PW2 sustained abrasion on the side of her face and forehead, and right wrist edema, which the examining doctor opined at D(14) as injuries likely caused by assault. The medical report of PW2 is annexed as PE2.

Record of interview of Noa Daveta (1^st accused) – PE3

Noa Daveta (1^st accused) made the following admissions in his record of interview:

1. He met the 2^nd accused and they planned to break into the white double storey house, and entered into the bottom flat by forcefully breaking the door. See Q&As’ 41, 43, 44, 45, 46, 47, 48 and 49.
2. He stole the moneybox, chocolate and a black bag from the bottom flat, and then entered the top flat from the side door and covered PW2’s mouth from behind and told her not to shout, and punched PW2 when she started screaming. See Q&As’ 50, 51, 52, 53, 54, 55, 56, 57 and 58.
3. He had the intention to steal, and stole the recovered items including the black mobile phone, moneybox, Cadbury chocolate and hat. See Q&As’61, 62, 63, 64, 65, 66, 67, 68 and 69.
   

Record of interview of HT (Juvenile)(2^nd accused) – PE4

HT (Juvenile)(2^nd accused) admitted that the 1^st accused and himself waited for the occupants of the flats to leave so that they can break into the property, and then entered into the bottom flat and stole a mobile phone, black bag, white mobile phone charger and moneybox while the 1^st accused took the chocolate and white hat. See Q/As’ 33, 40 and 43.

Both accused were then formally charged by the police for the offences of Aggravated Burglary and Theft, and an additional charge of Attempted Robbery for Noa Daveta (1^st accused).

Count 1 - Aggravated Burglary

7. The maximum sentence for the offence of Aggravated Burglary contrary to section 313(1)(a) of the Crimes Act 2009 is a custodial term of 17 years.
   
8. The Fiji Court of Appeal in Kumar v State [2022] FJCA 164; AAU117.2019 (24 November 2022) at paragraphs 75 to 78, held:

[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 1 – 3 using inter alia the factors given in the table below:

• Category 1 – Greater harm (High)
• Category 2 – Between greater harm and lesser harm (Medium)
• Category 3 – Lesser harm (Low)
  

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: 5 years Sentencing Range: 3 – 8 years	Starting Point: 7 years Sentencing Range: 5 – 10 years	Starting Point: 9 years Sentencing Range: 8 – 12 years
MEDIUM	Starting Point: 3 years Sentencing Range: 1 – 5 years	Starting Point: 5 years Sentencing Range: 3 – 8 years	Starting Point: 7 years Sentencing Range: 5 – 10 years
LOW	Starting Point: 1 year Sentencing Range: 6 months – 3 years	Starting Point: 3 years Sentencing Range: 1 – 5 years	Starting Point: 5 years Sentencing Range: 3 – 8 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)

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 addictions or offending behaviour
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

9. Based on the Fiji Court of Appeal sentencing guideline for the offence of Aggravated Burglary in Kumar v State [2022] FJCA 164; AAU117.2019 (24 November 2022) and the Prosecution’s Summary of facts, the category of harm in this instant is low, thus, the corresponding sentencing range of 1 to 5 years imprisonment, and starting point of 3 years imprisonment.
   
10. With the starting point of 3 years imprisonment, 1 year 6 months is added for the aggravating circumstances of the offending, in particular, the unlawful trespass and stolen items valued at $490.99 including the damage done to the complainants flats and compromising the safety and wellbeing of the flat dwellers. Furthermore, the accused persons total disregard of the utility and value and lack of respect of the complainants hard-earned properties contributing to the emotional and psychological trauma endured by the complainants, and prevalence of the offence of Aggravated Burglary are aggravating factors as well.
    
11. Having considered Defence counsel’s plea in mitigation, 1 year is deducted bearing in mind that:
    • (a) Noa Daveta (1^st accused) is 21 years old with no prior conviction, reached Form 4 in secondary education, unemployed and cooperating with the police; and
      
    • (b) HT (Juvenile)(2^nd accused) is 14 years old with no prior conviction; reached Class 8 at Vashist Muni Primary School, unemployed, and cooperating with the police, therefore, leaving a balance of 3 years 6 months.
      
12. With the interim custodial term of 3 years 6 months, I further make the following special deductions:
    
    1. Early guilty plea - 1 year 2 months is deducted being the one third deduction for the early guilty pleas of the 1^st and 2^nd accused. This approach is consistent with the Fiji Supreme Court decisions in Qurai v State [2015] FJSC 15; CAV24.2014 (20 AUGUST 2015) per Justice Saleem Marsoof at para. 54, and Aitcheson v The State [2018] FJSC 29; CAV0012.2018 (2 November 2018), paras. 12-15.
       

ii) Time spent in custody until guilty plea and pursuant to section 24 of the Sentencing and Penalties Act 2009, and Aitcheson v The State [2018] FJSC 29; CAV0012.2018 (2 November 2018), paras. 7-11, a deduction of 107 days i.e. 3 months and 15 days for Noa Daveta (1^st accused).

13. Thus, the head sentence for Count 1: Aggravated Burglary is:
    1. 2 years 15 days for Noa Daveta (1^st accused); and
    2. 2 years 4 months for HT (Juvenile)(2^nd accused).
       

Count 2 - Theft

14. The maximum sentence for the offence of Theft contrary to section 291(1) of the Crimes Act 2009 is a custodial term of 10 years.
    
15. In terms of the sentencing tariff for Theft, Justice Vincent Perera (as he then was) held in Waqa v State [2015] FJHC 729; HAA017.2015 (5 October 2015) at paras. 10-14:
    

Tariff for Theft under section 291 of the Crimes Decree

10. After considering a number of decisions of this court on tariff for the offence of Theft, I find that the court has opined the lower end to be 2 months imprisonment and the higher end to be 3 years imprisonment. (See Navitalai Seru v State [2002] FJHC 183; State v Saukilagi [2005] FJHC 13; Chand v State [2007] FJHC 65; Kaloumaira v State [2008] FJHC 63; Chand v State [2010] FJHC 291; Ratusili v State [2012] FJHC 1249; State v Koroinavusa [2013] FJHC 243; Lal v State [2013] FJHC 602; State v Batimudramudra [2015] FJHC 495).

11. An imprisonment of 2 to 9 months has been the tariff recognised under the now repealed Penal Code for a first offender who commits the offence of Theft. Section 262 of the Penal Code specified three different penalties for the offence of Theft as follows:

a) First offence of Theft (simple larceny) – 5 years

b) Simple larceny committed after having been previously convicted of a felony – 10 years

c) Simple larceny committed after having been previously convicted of a misdemeanor – 7 years

12. However, it is pertinent to note that the Crimes Decree 2009 does not specify different penalties for Theft based on previous convictions. The only penalty provided under section 291(1) of the Crimes Decree is an imprisonment for 10 years.

13. In view of the fact that the Crimes Decree has increased the maximum penalty for Theft from 5 years as stipulated in the Penal Code to 10 years, it is logical that the tariff for Theft should also be increased. Further, it is no longer the law in Fiji to recognise a different sentence or a tariff for Theft for offenders with previous convictions.

14. Considering all the above factors and the decisions of this court, I am inclined to hold the view that the tariff for Theft is 4 months to 3 years imprisonment.

16. The sentencing range for Theft is 4 months to 3 years imprisonment, and for this instant I take the starting point of 12 months or 1 year.
    
17. 1 year 6 months is added to the 1 year for the aggravating circumstances of the Theft bearing in mind the stolen properties and considerable loss to the complainants including the extent of damage done to the complainants flat and associated repair cost, the accused persons total disregard of the utility and value of the complainants properties and the emotional and psychological trauma sustained by the complainant due to the offending, and prevalence of the offence of Theft.
    
18. For the mitigating circumstances, I deduct 1 year leaving the balance of 1 year 6 months.
    
19. Due to the early guilty pleas I further deduct 6 months being the one third, and further deduction of 107 days i.e. 3 months and 15 days for Noa Daveta (1^st accused) for time spent in custody resulting in the following head sentence for Theft of:
    • (a) 8 months 15 days for Noa Daveta (1^st accused); and
      
    • (b) 12 months for HT (Juvenile)(2^nd accused).
      

Count 3 – Attempted Robbery

20. The maximum sentence for the offence of Attempted Robbery contrary to sections 44(1) and 310(1)(a)(i) of the Crimes Act 2009 is a custodial term of 15 years.
    
21. In terms of the sentencing tariff for Attempted Robbery, Justice Salesi Temo (as he then was) held in State v Balekivuya [2011] FJHC 467; HAC095.2010 (12 August 2011) at para. 8:
    

8. Attempted robbery carries the maximum sentence of 15 years imprisonment. The tariff in this type of cases is a sentence between 8 to 14 years imprisonment. I agree with and accept His Lordship Justice Goundar’s statement in State v Elia Manoa Criminal Case No. HAC 108 of 2009 and 61 of 2010, High Court, Suva. The actual sentence will again depend on the mitigating and aggravating factors.

22. The relevant tariff for Attempted Robbery is 8 to 14 years imprisonment, and in this instant I take the starting point of 8 years.
    
23. The 8 years is enhanced by 1 year for the aggravating factors bearing in mind that Noa Daveta (1^st accused) while attempting to rob, punched PW2 Nileshni Kiran Sharma causing her to sustain the injuries noted in the medical report (PE2) including the emotional and psychological trauma endured by PW2, and lack of respect of PW2 and her family’s dwelling place where one finds solace and security.
    
24. I deduct 5 years for the mitigating factors considering that Noa Daveta (1^st accused) is 21 years with no prior conviction, reached Form 4 level in secondary education, unemployed and cooperated with the police resulting in the interim custodial term of 4 years.
    
25. Further deduction of the 4 years by one third for the early guilty results in a custodial term of 2 years 9 months, which custodial term is reduced further by 107 days i.e. 3 months and 15 days for time spent in custody resulting in the head sentence of 2 years 5 months 15 days.
    

Totality principle of sentencing

26. Considering the Totality principle of sentencing and relevant provisions in the Sentencing and Penalties Act 2009:
    
    1. For Noa Daveta (1^st accused) the custodial terms for Count 1: Aggravated Burglary, Count 2: Theft, and Count 3: Attempted Robbery are hereby made concurrent resulting in the aggregate custodial term of 2 years 5 months 15 days; and
       
    2. For HT (Juvenile)(2^nd accused) the custodial terms for Count 1: Aggravated Burglary and Count 2: Theft are hereby made concurrent resulting in the aggregate custodial term of 2 years 4 months.

Suspended Sentence

27. Given the aggregate custodial terms of 2 years 5 months 15 days for Noa Daveta (1^st accused), and 2 years 4 months for HT (Juvenile)(2^nd accused), I have decided to suspend the said custodial terms for 3 years mainly on the basis that both accused persons are young in age and have no prior conviction, and for HT (Juvenile)(2^nd accused) on the basis of sections 30 and 32 of the Juveniles Act [Cap56] read in conjunction with section 57 of the Prisons and Corrections Act 2006 and Sentencing and Penalties Act 2009.
    

Conclusion

28. Noa Daveta (1^st accused) is convicted of Count 1: Aggravated Burglary; Count 2: Theft; and Count 3: Attempted Robbery, and sentenced to 2 years 5 months 15 days imprisonment, which sentence is suspended for 3 years.
    
29. HT (Juvenile)(2^nd accused) is convicted of Count 1: Aggravated Burglary and Count 2: Theft, and sentenced to 2 years 4 months imprisonment, which sentence is suspended for 3 years.
    
30. Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) are hereby informed that if they are later charged and found guilty of another criminal offence(s), the sentencing court may activate their respective imprisonment terms noted above.
    
31. Pursuant to section 32(1)(h) of the Juveniles Act (Cap.56), I order that HT (Juvenile)(2^nd accused) be enrolled in a school and to resume his formal education accordingly, to be supervised accordingly by the Social Welfare Department working in collaboration with the juvenile’s legal guardian(s).
32. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

Orders of the Court

1. Noa Daveta (1^st accused) is sentenced to 2 years 5 months 15 days imprisonment, which sentence is suspended for 3 years.
   
2. HT (Juvenile)(2^nd accused) is sentenced to 2 years 4 months imprisonment, which sentence is suspended for 3 years.
   
3. Noa Daveta (1^st accused) and HT (Juvenile)(2^nd accused) are hereby informed that if they are later charged and found guilty of another criminal offence(s), the sentencing court may activate their respective sentence noted above.
   
4. Pursuant to section 32(1)(h) of the Juveniles Act [Cap56], I hereby order that HT (Juvenile)(2^nd accused) be enrolled in a school and to resume his formal education accordingly, to be supervised accordingly by the Social Welfare Department working in collaboration with the juvenile’s legal guardian(s).
   

Hon. Justice P. K. Bulamainaivalu
Puisne Judge

At Suva
8^th October 2024

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