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State v Isaac - Sentence [2019] FJHC 598; HAC248.2018 (18 June 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 248 OF 2018

STATE

-v-

1. JOHN ISAAC
2. SERA CAVE NAIVALURUA
   

Counsel: Mr. Z. Zunaid & Ms. S. Lodhia for Prosecution

Mr. J. Dinati for Accused

Date of Judgment : 7 June 2019

Date of Sentence : 18 June 2019

SENTENCE

1. John Isaac, Sera Cave Naivalurua, you were jointly charged with two counts of Aggravated Burglary and two counts of Theft. The information reads as follows:
   

COUNT ONE

Statement of Offence

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

Particulars of Offence

JOHN ISAAC AND SERA CAVE NAIVALURUA together with another on the 5^th June 2018 at, Suva in the Central Division, in the company of each other entered into the premises of ASHLA SINGH as trespassers with intent to commit theft of ASHLA SINGH’s property.

COUNT TWO

Statement of Offence

THEFT: Contrary to Section 291 of the Crimes Act 2009.

Particulars of Offence

JOHN ISAAC AND SERA CAVE NAIVALURUA together with another on the 5^th June 2018 at, Suva in the Central Division, in the company of each other STOLE 1X 65 INCH Hitachi TV flat screen valued at $3500.00, 1x sharp brand Microwave Oven valued at $400.00 and a toaster, all to the total value of $4000.00 the property of ASHLA SINGH with the intention to deprive ASHLA SINGH of the above properties.

COUNT THREE

Statement of Offence

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

Particulars of Offence

JOHN ISAAC AND SERA CAVE NAIVALURUA together with another on the 8^th June 2018 at, Suva in the Central Division, in the company of each other entered into the premises of ASHLA SINGH as trespassers with intent to commit theft of ASHLA SINGH’s property.

COUNT FOUR

Statement of Offence

THEFT: Contrary to Section 291 of the Crimes Act 2009.

Particulars of Offence

JOHN ISAAC AND SERA CAVE NAIVALURUA together with another on the 8^th June 2018 at, Suva in the Central Division, in the company of each other stole 1x Hisense Metallic refrigerator valued at $2000.00, 1 x Simpson washing machine valued at $1000.00, a round dining table and 4 chairs valued at $1200.00, 2x English chairs valued at $1500.00, 1x black autumn leather chair valued at $1500.00, assorted white plates valued at $300.00, Bakeret Stainless steel pots valued at $600.00, Sony brand stereo valued at $2000.00, 4x chairs valued at $200.00, carved table valued at $1500.00, and 4x chairs $200.00 all to the total value of $11,800.00 the property of ASHLA SINGH with the intention to deprive ASHLA SINGH of the above properties.

2. After a full trial, you were convicted as charged. You now come before this court for sentence.
   
3. The facts of the case are that the complainant was looking after the house of Mr. Hazelman, who was away in Geneva for over two weeks. On11^th of June 2018, Ms. Hazelman got a call from her husband that her house had been broken into. She immediately went to the house at 131 Domain Road. When she got there, she saw her house being ransacked and damaged. She found that her household items listed in the agreed facts had been stolen. She recorded a statement with police giving a list of items that had gone missing from her house.
   
4. Upon an information received, the police raided your house on the 12th of June, 2018, at Rokara. Except 65 inch screen TV and washing machine, all other missing items were recovered from your house. The complainant and Ms. Hazelman identified the stolen items which were later released to them by police.
   
5. You were interviewed by police under caution. In respective caution interviews, you admitted that on the 5^th and 8^th of June 2018 you removed the items listed in the agreed facts with another person named Seta. You also admitted that the stolen property were in your possession as at 11^th June 2018, 3 to 5 days after the alleged thefts and burglaries.
   
6. You, in your respective caution interviews, implicated one Seta and denied any knowledge that you were moving the property with the intention to steal. However, you failed to give a reasonable or probable explanation for your conduct and recent possession of stolen property. The court disbelieved your explanations and found you both guilty on each count accordingly.
   
7. The maximum punishment for Aggravated Burglary under Section 313 (1) (a) is an imprisonment term of 17 years and the maximum punishment for Theft is an imprisonment term of 10 years.
   
8. The tariff for the offence of Aggravated Burglary is between 18 months to 3 years imprisonment. This tariff has been adopted in several decided cases: State v. Mikaele Buliruarua [2010] FJHC 384; HAC 157.2010 (6 September 2010); State v. Nasara [2011] FJHC 677; HAC 143.2010 (31 October 2011); State v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16 May 2013); State v. Seninawanawa [2015] FJHC 261; HAC 138.2012 (22 April 2015); State v. Seru [2015] FJHC 528; HAC 426.2012 (6 July 2015); State v. Drose [2017] FJHC 205; HAC 325.2015 (28 February 2017); and State v. Rasegadi & Another [2018] FJHC 364; HAC 101.2018 (7 May 2018) and recently in State v Tukele - [2018] FJHC 558; HAC179.2018 (28 June 2018).
   
9. The examination of recent case law reveals that the suitability of the above mentioned tariff has been questioned in the wake of ever increasing incidents of aggravated burglaries in this country. I have hitherto applied the tariff apparently endorsed by the Court of Appeal decision in Leqavuni v. State [2016] FJCA 31; AAU 106.2014 (26 February 2016) and will continue to apply the same until a clear guidance is given by the Court of Appeal.
   
10. The tariff for the offence of Theft should range from 4 months to 3 years imprisonment, as discussed in Waqa v State [HAA 17 of 2015].
    
11. In assessing the objective seriousness of your offending, I examined the degree of culpability and the loss caused to the complainant. Your culpability is comparatively high given the serious nature of the offending. Both of you were actively engaged in the offending. Most of the stolen items were recovered and they have been handed back over to the complainant. Having considered all these factors, I would pick a starting point of 2 years.
    
12. There are number of aggravating features in your offending. These are well planned day light burglaries / thefts by unsuspected culprits. You were blaming a person named Seta throughout the trial but failed to disclose the real identity of the third person involved in these offences. You tried to mislead the police and the Court. The value of the property stolen is considerably high. The burgled house was damaged.
    
13. I would consider the mitigating circumstances filed by your counsel separately.
    
14. Both of you have now acknowledged that what you have done is wrong and you are apologetic to court. If you acknowledged your wrongdoing at the first available opportunity, I would have thought that you have been genuinely remorseful.
    
15. John Isaac, in mitigation, your counsel has informed the court that you are 37 years of age, married to the second offender, Sera, and a father of two children. You have served the country as a member of Territorial Force in Fiji Military Force and served in Peace Keeping Missions in Lebanon and Syria. You have also worked as a Cadet Officer with the Fiji Corrections Services. You seek mercy of this court and another chance to rehabilitate and take care of your children. Most of the stolen items have been recovered. You are a first offender. I have considered all these factors in discounting your sentence.
    
16. Sera Naivalurua, you are 33 years of age. You are married to the first offender with two children. You are a hairdresser by profession and now a receptionist at a hotel. Your counsel informs court that you are a dedicated community and religious worker. I have considered the character references filed to that effect. You are a first offender.
17. I accept that as first time offenders, you deserve another chance to rehabilitate. I can understand the predicament of your children when both of you go to correction centre. However, the aggravating features of your offending specially the pre-planning do not allow me to sentence you leniently. Furthermore you have not cooperated with police to arrest the third person involved in these offences. The people in Fiji are now in a state of fear and anxiety that their property and home will be invaded at any time by unscrupulous people like you. Therefore, custodial sentence is inevitable in this case to denounce your offending and deter you and others from committing these types of offences in future.
    
18. Both of you were in remand for approximately two months. Your remand period will be separately discounted.
    
19. In terms of section 17 of the Sentencing and Penalties Act, I would impose an aggregate sentence for all four counts in view that you were convicted based on the same facts.
    
20. For aggravating factors, I add 1 year to arrive at a sentence of 3 years for each of you. For mitigating factors and remand period, I deduct 1 year to arrive at an aggregate sentence of 2 years’ imprisonment for each of you. Considering the harmful effects of a long prison sentence for your children and to facilitate your rehabilitation as first offenders, I fix a non-parole period of 18 months. Therefore you are eligible for parole after serving 18 months in the correction centre.
    
21. John Isaac, you are sentenced to 2 years’ imprisonment with a non-parole period of 18 months.

Sera Cave Naivalurua, you are sentenced to 2 years’ imprisonment with a non-parole period of 18 months.

22. You have 30 days to appeal to the Court of Appeal.
    

Aruna Aluthge

Judge

At Suva

On 18^th June, 2019

Counsel: Office of the Director of Public Prosecution for Prosecution

MIQ Lawyers for Accused