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State v Moce Junior [2019] FJHC 746; HAC11.2019 (30 July 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 11 of 2019

[CRIMINAL JURISDICTION]


STATE

V

SAKEO MOCE JUNIOR


Counsel : Mr. E. Samisoni for the State
Ms. L. David for the Accused
Date of Sentence : 30 July 2019


SENTENCE

  1. Sakeo Moce Junior, you stand convicted of one count of aggravated burglary and one count of theft upon you pleading guilty to the relevant charges. The charges reads thus;

FIRST COUNT

Statement of Offence

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


Particulars of Offence

SAKEO MOCE JUNIOR on the 2nd day of January, 2019 at Nasinu in the Central Division, in the company of each other, entered as trespassers into the house of RAJNEEL NARESH, with the intent to commit theft.


SECOND COUNT

Statement of Offence

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


Particulars of Offence

SAKEO MOCE JUNIOR on the 2nd day of January, 2019 at Nasinu in the Central Division, in the company of each other, dishonestly appropriated (stole) 1x iPhone 6S, 1x 42”inch TV, 1x washing machine, 1x HP laptop, 1x HP Compaq laptop, 1x Nakita clothes iron, 2x Nike slip-on, 1x Acer laptop bag, 1x blue knapsack bag, 1x smart watch and 1x handbag, the property of RAJNEEL NARESH with the intention of permanently depriving RAJNEEL NARESH of the said property.


  1. You have admitted the following summary of facts;

Accused (A1)

SAKEO MOCE JUNIOR – 22 years old, unemployed. Resided at Veiraisi settlement, Nadera at the time of the incident.


The Complainant (PW1)

RAJNEEL NARESH – 20 years old, student of Nadera.

(PW2) NANISE WAITALIKABA – 42 years old, domestic duties of Veiraisi Settlement – Nadera.


On the 2nd January, 2019 at around 11.30am at Nadera, PW1 was informed by his girlfriend that their flat had been broken into that morning. PW1’s girlfriend was asleep inside the flat at the time of the incident. PW1 then went to the Valelevu Police Station to report the matter before going to his flat, where he found the following items had been stolen:

1x iPhone 6S, 1x 42”inch TV, 1x washing machine, 1x HP laptop, 1x Nakita clothes iron, 2x Nike slip-on, 1x Acer laptop bag, 1x blue knapsack bag, 1x HP laptop, 1x smart watch and 1x handbag.

PW2 stated that after 11am on the day of the incident, she was at home when she saw three boys walking towards her house. She said she saw that the three boys were carrying a flat screen television, a big bag, a small bag and a carton. PW2 and that the boys were about 20 meters away from her when she recognized A1, PW2 said that A1 was carrying the flat screen television.

After investigations were conducted, A1 was arrested by the police and interviewed under caution on 4th January, 2019. A1 made full admissions in his Record of Interview [both English and itaukei versions Annexed as PE1] at Q&A’s 37 – 59 where he admitted that he and two accomplices broke into PW1’s flat. Also, during the Record of Interview, A1 voluntarily took part in a scene reconstruction confirming how he and his two accomplices had entered PW1’s flat and stolen items from there. A1 stated that he and his two accomplices entered PW1’s flat through a door and they proceeded to steal the abovementioned items from the flat. A1 said that someone was sleeping inside the flat. A1 took the flat screen television. A1 and his two accomplices then met at Veiraisi settlement with the stolen items and he further admitted that he was seen there carrying the flat screen television. Furthermore, A1 admitted in his Charge Statement dated 5th January, 2019 [Annexed as PE2] to taking the flat screen television from PW1’s flat.

The following items have since been recovered: 1x flat screen television, 1x washing machine, 1x laptop bag and 1x knapsack bag.

A1 and his two accomplices were then charged with one count each of Aggravated Burglary and Theft.

A1 pleaded guilty to both offences as charged, in the presence of his counsel.


  1. The tariff for the offence of aggravated burglary which carries a maximum penalty of 17 years imprisonment should be an imprisonment term within the range of 6 years to 14 years. [See State v Prai>&#16> [2017] FJHC 761; HAC254.2016 (12ber 2and State v Naulu [2018] FJHC 548 (25 June 2018)]
    2. The">The offence of theft contrary to section 291 of the Crimes Act carries a maximum sentence of 10 years. I case of Waqa v qa v State/b>& [HAA 17 of 2015], this helt held that the tariff for the offence of theft should be 4 months to 3 years imprisonment.
  2. Tfences you are convicted ofed of are founded on the same facts. Therefore, in view of the provisions of section 17 of the Sentencing and Penalties Act, I consider it appropriate to impose an aggregate sentence of imprisonment against you for the two offences you have committed. Section 17 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”) reads thus;

“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.”


  1. The total value of the items stolen according to the cautioned interview is $4360. The offence was committed by 03 persons including you. These two factors aggravate the offending. The offence of aggravated burglary is constituted when burglary is committed by more than one person. Needless to say, the seriousness of the offence of burglary increases with the number of offenders involved in committing that crime. It stands to reason that an aggravated burglary committed by 03 offenders where items worth of $4360 were stolen is more serious than an aggravated burglary committed by two offenders where no items were stolen or the value of the items stolen was minimal, let’s say $50.
  2. In your mitigation, apart from the fact that you have entered an early guilty plea, it is submitted that;
    1. You have cooperated with the police; and
    2. Some of the stolen items have been recovered.
  3. You are 23 years old and single. It is submitted that you usually reside with your family. You have reached class 8 and you are unemployed.
  4. As I said in State v Beverly [2019] FJH; HAC153.2019 (199 (19 July 2019), the interests of justice demand a deterrent punishment to be given in this type of cases. Undue leniency when it comes to punishing offenders who commit burglary or aggravated burglary, in my view, tend to contribute for burglary to remain as the most prevalent offence in Fiji and would therefore lead to an erosion of the confidence reposed by the people in the rule of law.
  5. I would select 06 years as the starting point of your aggregate sentence. I would add 01 year in view of the aforementioned aggravating circumstances of your offending and would deduct 02 years in view of the above mitigating factors. Now your sentence is an imprisonment term of 05 years.
  6. When you were first arraigned, you pleaded not guilty to the charges. That was on 26/02/19. Then on 03/05/19 you indicated to court that you are willing to take a progressive approach and you pleaded guilty to the charges on 27/05/19. Therefore your guilty plea, though it is indeed an early guilty plea, is not one entered at the earliest opportunity. In view of your early guilty plea, I would grant you a discount of one-fourth. Accordingly, the final sentence is an imprisonment term of 03 years and 09 months. I would fix your non-parole period at 02 years.
  7. It is submitted that you have been arrested in view of this matter on 04/01/19. Accordingly, you have spent 06 months and 26 days in custody in view of this matter. The time you have spent in custody shall be regarded as a period of imprisonment already served by you in terms of section 24 of the Sentencing and Penalties Act.
  8. Even though the sentencing range for aggravated burglary should be an imprisonment term between 06 years and 14 years, young first offenders who enter early guilty pleas are generally given substantial discounts so that they ultimately receive suspended sentences. This is to give them a second chance and to promote rehabilitation. I would generally regard offenders between the ages of 18 to 20 as young offenders. In your case, you were almost 23 years old when you committed the offence and you are not a first offender. You had in fact committed this offence during the operational period of a suspended sentence of 06 months imprisonment for the offence of theft. The said sentence was imposed on you on 29/03/17 and it was suspended for 03 years. You have committed the offences in this case on 02/01/19.
  9. Given the facts and circumstances before me, your age and your background, I consider it imperative that you serve a custodial sentence to deter you from committing further offences and for your sentence to be a deterrent to others out there with similar impulses. This sentence is also imposed with the view of promoting you rehabilitation. In that, you are expected to benefit from the rehabilitation programs conducted by the Corrections Services. For this reason I have fixed your non-parole term at 02 years.
  10. In the result you are sentenced to an imprisonment term of 03 years and 08 months with a non-parole period of 02 years. Given the time spent in custody, the time remaining to be served is;

Head Sentence – 03 years; 02 months; and 04 days

Non-parole Period – 01 year; 05 months; and 04 days


  1. Thirty (30) days to appeal to the Court of Appeal.

Vinsent S. Perera
JUDGE


Solicitors;

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

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