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State v Wesele [2019] FJHC 783; HAC90.2019 (7 August 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 90 OF 2019 & 96 OF 2019

STATE

-v-

1. TOMASI WESELE

2. S W (Juvenile)

Counsel : Ms. S. Lodhia for Prosecution

Ms. L. David for Defence

Date of Sentence : 7 August 2019

(The name of the Juvenile is suppressed. The juvenile is referred to as SW)

RULING ON PUNISHMENT

1. Tomasi Wesele and SW, you were jointly charged on the following information of one count of Aggravated Burglary and one count of Theft:
   

COUNT 1

Statement of Offence

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

Particulars of Offence

TOMASI WESELE and SW on the 2^nd day of January, 2019 at Navua in the Eastern Division, entered into a dwelling house of JAI PRAKASH MAHARAJ as trespassers, with intent to commit theft therein.

COUNT 2

Statement of Offence

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

Particulars of Offence

TOMASI WESELE and SW on the 2^nd day of January, 2019 at Navua in the Eastern Division, dishonestly appropriated 1x bottle of Bombay Sapphire, 2xbottles of Black Label and 3x packets of chocolates, the properties of JAI PRAKASH MAHARAJ with the intention of permanently depriving JAI PRAKASH MAHARAJ of his properties.

2. You pleaded guilty to each count on your own free will. You understood the consequence of the guilty plea and the sentencing tariffs for the offences you have committed. I am satisfied that the guilty pleas are informed and unequivocal and entered freely and voluntarily.
   
3. You agreed the following summary of facts when it was read to you in court. The facts agreed satisfy all the elements of each offence you are charged with. You are found guilty and convicted on each count as charged.
   
4. The facts you agreed are that:
   
   1. The complainant in this matter is Jai Prakash Maharaj, 68 years old, retired, and resides at Vakabalea, Navua.
      
   2. PW2 is Semesa Ragigi, 33 years old, labourer, resides at Vakabalea, Navua.
      
   3. The accused is Tomasi Wesele, 20 years old, student at FNU, resides at Vakabalea, Navua.
      
   4. The juvenile is 17 years old, student at ............ Secondary School, resides at Vakabalea, Navua.
      
   5. The accused and the juvenile are brothers.
      
   6. The accused and the juvenile are charged and have voluntarily pleaded guilty to 1 count of Aggravated Burglary and Theft, contrary to Section 313 (1) (a) and 291(1) of the Crimes Act 2009.
      
   7. On 6^th January 2019, the complainant returned from Australia after about a month and found out that his house was broken into. The back door was damaged and the following was missing:
      

1 x bottle of Bombay sapphire valued at $150

2 x bottles of Black label valued at $150 each

3 packets of chocolate valued at $12 each. All to the total value of $486.

8. Matter was reported to police and investigations led to the accused and the juvenile being arrested much later (March 2019).
   
9. On 2^nd January 2019 at about 9pm, PW2 namely Semesa Ragigi was returning from church with one Kaliova along Vakabalea Road, Navua when he saw 3 boys drinking at a bus stop. He clearly identified SW (juvenile) and saw him holding a bottle of Bombay Sapphire. He was accompanied by Tomasi Wesele and one Inia Kalou. PW2 then joined them and they continued drinking. PW2 came to know later that the alcohol bottle was stolen from complainant’s house.
   
10. On 3^rd March 2019, the accused namely Tomasi Wesele was interviewed under caution by DC 3576 Basilio Kelekeleivalu at Navua Police Station.
    
11. In his interview, the accused admits breaking into the complainant’s house with his accomplice. He states that they broke into the house on the evening of 2^nd January 2019. They were walking on the road when they decided to break into the house because it was the New Year and they wanted to drink.
    
12. Once they reached the house, the accused told his accomplice to get a spanner, screw driver, and plies from home so that they could open the door of the complainant’s house. They then went inside the complainant’s kitchen, searched the cabinet and took the alcohol bottles. The accomplice opened the fridge and took the chocolates. They ate the chocolates and then hid the alcohol bottles inside the drain beside the drive way. Thereafter, they went home, had their shower and then took the bottles to a bus stop along Vakabalea Feeder Road. Later they were joined by PW2 and others.
    
13. An empty bottle of Bombay Sapphire that was found at the bus stop where the accused was drinking was shown to him during his interview. The spanner that was found at the back door of the complainant’s house was also shown to the accused. The accused was also taken for a scene reconstruction. A copy of the caution interview is attached herewith as Annexure 1.
    
14. On 4^th March 2019, the juvenile, namely, SW was interviewed under caution by DC 3525 Mataiasi Rokobiti at Navua Police Station.
15. In his interview, the juvenile admits that he broke into the complainant’s house with his accomplice. They were walking along the road when the accomplice decided to break in. The accomplice opened the back door. He used a screw driver to remove all the timber lining on the glass, removed the glass, put his hand inside the opening, opened the lock from the inside and then opened the door.
    
16. Thereafter, they took alcohol bottles and chocolates from the house. A copy of the caution interview is attached herewith as Annexure 2.
    

5. The maximum punishment for Aggravated Burglary is an imprisonment term of 17 years and the maximum punishment for Theft is an imprisonment term of 10 years.
   
6. 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).
   
7. The tariff for Theft ranges from 4 months to 3 years imprisonment: Waqa v State [HAA 17 of 2015].
   
8. In terms of section 17 of the Sentencing and Penalties Act, I would impose an aggregate sentence for both counts in view of the fact that you were convicted based on the same facts.
   
9. In assessing the objective seriousness of your offending, I considered the degree of culpability in your offending and the loss caused to the complainant. Having considered those factors, I would pick a starting point of 24 months for each of you.
   
10. The only aggravating factor in your offending is that you planned these offences. I add 6 months for the aggravating feature to reach 30 months.
    
11. Tomasi Wesele, you are 19 years of age. You are a student at Fiji National University enrolled to do a course in Engineering. You entered early guilty pleas at the first available opportunity. You are a first and young offender. You have promised not to reoffend and you beg for a second chance to rehabilitate yourself. You have cooperated with the police. You seek mercy of this court. For these mitigating features I deduct 12 months to reach 18 months.
    
12. I consider the early guilty pleas as evidence of genuine remorse. I give a full third deduction for the early guilty pleas. Now your final aggregate sentence is 12 months imprisonment.
    
13. SW, you are 17 years of age and a juvenile. You are still schooling at Year 11. You have cooperated with police. You seek mercy of this court. You have promised not to reoffend and you beg for one more chance to rehabilitate yourself. You are a first offender with a clear record. You pleaded guilty at the first available opportunity to both counts. I consider your early guilty pleas as evidence of genuine remorse. You have saved court’s time and resources by pleading guilty to the charges at a very early stage of the proceedings. I give a full third deduction to arrive at a sentence of 12 months imprisonment. Now your final aggregate sentence is 12 months imprisonment.
    
14. Both of you are first and young offenders having a high potential of rehabilitation. The courts should promote rehabilitation of first and young offenders. To promote rehabilitation, I suspend the sentence for a period of 2 years. If you are convicted for another offence during the next 2 years, the suspended sentence may be activated.

Summary

15. Tomasi Wesele, you are sentenced to 12 months’ imprisonment suspended for a period of 2 years.

SW, you are sentenced to 12 months’ imprisonment suspended for a period of 2 years.

Aruna Aluthge

Judge

At Suva
On 7th August, 2019

Counsel: Office of the Director of Public Prosecution for Prosecution
Office of the Legal Aid Commission for Accused