State v A.K. [2017] FJMC 97; Juvenile Case 55.2015 (25 July 2017)

IN THE RESIDENT MAGISTRATES COURT
AT SUVA
CRIMINAL JURISDICTION

Juvenile Case No. 55/15

The State

V

A. K.

For the State : State CouMs. Lodhia S.ia S.

For the Juvenile : Counsel Ms. Daunivesi

Date of Punishment : 25^th

PUNISHMENT

Introduction

1. The Juvenile has been charged as follows;

(i) Count 1- Aggravated Burglary contrary to the Section 313(1)(a) of the

Crimes Decree No. 44 of 2009.

(ii) Count 2- Theft contrary to the section 291(1) of the Crimes Decree No.

44. of 2009.

(iii) Count 2- Theft contrary to the section 291(1) of the Crimes Decree No.

44. of 2009.
    

2. Aggravated Burglary is an indictable offence and the case was transferred to the High Court on 14/09/2015. Subsequently, the High Court has granted extended jurisdiction to the Juvenile Court on 25/09/2015, in terms on Section 4(2) of the Criminal Procedure Decree 2009.
3. You have pleaded guilty to the charges on your own free will, on 29/06/2017, with a representation by a Counsel from Legal Aid.
4. The prosecution has filed the Summary of Facts on 10/07/2017, which has been duly admitted by you. It revealed that on 12^th September 2015, around 4.15am, the complainant, Dharmendra Kumar has found out that his house has been robbed and following items were stolen.
5. 1 pair of gold earrings round ($1,200), 1 pair heavy bali ($1,200), 1 thick gold chain ($1,000), 3 black pen with pear chains ($300), 4 gold bangles ($10,000), 1 carat(9) gold bracelet ($500), 1 gold ring ($1000) 3 gold mohars ($900), 1 pair gold bali ($900), 1 thick ladies bracelet ($700), 1 pair gold earring leaf shaped ($400), 1 pair gold earring round ($1,500), 1 pulsar men watch ($600), 1 Samsung 38’ smart TV ($6,000), 2 USB ($80), 1 HP Laptop($2,000), 1 Samsung 10 Tablet ($3,000), 1 genuine leather belt ($300), 1 Samsung Galaxy Alpha phone ($2,999), 1 Huawei phone ($300), 1 Police beenet hood ($300), 1 police winter jacket, 1 shoes for police uniform ($120), Cebo sandal ($120), Shoes leather ($200), Wallet ($135), Westpac card, ANZ card, FNPF card, BSP card and Voters ID, Cash AUD$ 50, FJD$10, Indonesian Dollard 52,000 and 1 Green colour Toyota Sprinter with registration number EJ 088 ($15,000). Total value of stolen items, except the vehicle and the cash is $ 41,364.
6. On the same day at about 11am, an officer from Lautoka Police Station, who was on a joint operation with LTA officers, has checked a bluish green vehicle at Banaras which was driving by you, and found out that the vehicle was a stolen one and you have been arrested.
7. You have been interviewed under caution in the presence of a Social welfare Officer, whereby you have admitted committing said offences together with three of your friends. Certain stolen items from the complainant’s house have been recovered from your possesion, together with the vehicle and the cash. The vehicle has been damaged (value $5,500) by the time it was recovered.
8. Being satisfied with your unequivocal plea of guilt, and the admitted Summary of facts, which satisfy the elements of offences, I find you guilty to the offences of Aggravated Burglary and Theft as set out in the charge.

Tariff

Aggravated Burglary

9. The maximum penalty for Aggravated Burglary is 17 years imprisonment. The tariff for this offence has been discussed by Justice Madigan in the case of State v Seninawanawa [2015] FJHC 261;HAC 138.2012 (22 April 2015) as a sentence between 18 months and 3 years, with 3 years being the standard sentence for burglary of domestic premises. This tariff has been accepted by the Court of Appeal in Meli Leqavuni V State [2016] FJCA 31; AAU0106.2914 (26 February 2016) by Justice Basnayake.
   

Theft

10. The maximum penalty for Theft is 10 years imprisonment and the tariff for this offence was discussed by Justice Madigan in Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where the following principles were established:
    1. For a first offence of simple theft the sentencing range should be between 2 and 9 months;
    2. Any subsequent offence should attract a penalty of at least 9 months;
    100. 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;
    4. Regard should be had to the nature of the relationship between offender and victim;
    5. Planned thefts will attract greater sentences than opportunistic thefts.
       
11. In addition to the aforementioned tariff, in terms of section 30(3) of the Juvenile Act, this court has a limitation in deciding an appropriate punishment for Juveniles, which says, a young person shall not be ordered to be imprisoned for more than 2 years for any offence.
    

Aggravating Factors

12. The acts of robbery and theft were well planned.
13. Value of the stolen items is considerably high.
    

Mitigating Factors

14. You were 17 years old at the time of the offence and now you are 19 years old.
15. Your de facto partner is expecting a baby.
16. You are remorseful of your act and have promised not to re-offend.
17. Certain stolen items have been recovered.
    

Early Guilty Plea

18. You have tendered an early guilty plea on 05/11/2015. You have been absconding court more than 10 months and were apprehended on 06/06/17. By that time the prosecution has amended the charges (value of certain items) and you have pleaded guilty to amended charges on 29/06/2017.
    
    19. In Vilimone v State [2008] FJHC 12; HAA 131-132.2007 (8 February 2008) Justice Mataitoga has commented that a discount from the sentence for a guilty plea should be considered separately from other mitigating factors. Further he has said that “Because the Appellant has pleaded guilty at the first available opportunity, his sentence should be reduced approximately by a third...”
        
    20. In Rokini v State [2013] FJHC 680; HAA16-19.2013 (12 December 2013), Justice Gounder quoted from the Court of Appeal Judgment Daunabuna v. The State (2009) FJCAAAU0120.2120.2007 (4 December 2009) “the Court of Appeal highlighted the considerations that went to the weight of lty plea at [16]...” "The weight to be given to a guilty plea depends on a nu a number of factors. Some of these factors were identified by Hunt CJ at CL in R v. WinchesterAccording to these decisions, contrition or some other quality of attribute shown in guilty plea, should be considered independently from the mact that the person has ples pleaded guilty.
        
    21. You have pleaded guilty at the earliest available opportunity saving time of the court and the expenses of a full trial. According to your submissions, you are remorseful and apologised to court. Therefore, your early guilty plea should attract a considerable concession on your punishment.
        

Punishment

22. Aggravated Burglary and Theft are very serious offences which are denounced by the society. Citizens should be protected from this kind of offences and they should have the peace to sleep in the night without fear of losing their properties.
    
23. Offenders of this calibre should deter from further offending of this nature.
24. Considering the nature and the gravity of the offence, as well as the statutory limitations, I will select 18 months imprisonment term as the starting point for the offence of Aggravated Burglary. I will add 6 months for the aggravating factors making it 24 months interim imprisonment. I will deduct 8 months for the early guilty plea and another 4 months for the other mitigating factors, making your final punishment as 12 months imprisonment term for the offence of Aggravated Burglary.
    
25. I will impose 6 months imprisonment term for the second count of theft and another 6 months imprisonment term for the third count of theft.
    
26. From 14/09/2015 to 05/07/2016, you have spent 9 months and 21 days and from 06/06/2017 to 25/07/2017 another 1 month and 19 days, in remand custody for this case. Entire period you have spent in remand is 11 months and 10 days. Therefore, I will deduct said period from your final sentence of 12 months and your remaining imprisonment term is only 20 days.
    
27. The court further orders that all three punishments should be served concurrently. Since you have already spent 11 months and 10 days in remand custody, your punishments for the 2^nd and 3^rd counts will be considered as served.
    
28. Now I will consider whether I should suspend your punishment.
    
29. According to section 4 of the Sentencing and Penalties Act, rehabilitation of offenders is also one of important purposes of punishment. This aspect is more prominent in case of young offenders in your age.
    
30. However, according to your previous punishment report you have 7 previous punishments within 3 years, where some of them are in similar nature (Theft) and some of your punishments have been suspended. Nevertheless, it is obvious that you have not make use of rehabilitation opportunities given to you earlier. Therefore, the court is in the opinion that your punishment should not be suspended.
    
31. As this court has exercised extended jurisdiction of the high court parties may Appeal to the court of Appeal with leave.
    

Summary of the Sentence

20 days imprisonment for the 1^st count

...........................

Geethani Wijesinghe

Resident Magistrate

At Suva
25^th July 2017