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State v LR - Sentence [2020] FJHC 993; HAC133.2020 (27 November 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 133 of 2020


STATE

V

1. LR

2. EMOSI TABUASEI

3. ALIVIO KALOKALODROMU


Counsel : Ms. Bhavna Kantharia for the State
Mr. Jalesi Korotini for the 2nd Accused

Ms. Manisha Singh for the 3rd Accused


Sentence Hearing : 22 October 2020

Sentence : 27 November 2020

The name of the Juvenile has been suppressed. Accordingly, he will be referred to as LR.


SENTENCE


[1] Emosi Tabuasei and Alivio Kalokalodromu, as per the Consolidated Information filed by the Director of Public Prosecutions (DPP), you were charged, along with LR, with the following offences:

COUNT 1

Statement of Offence

FAILURE TO COMPLY WITH ORDERS: Contrary to Section 69 (1) (c) and Section 69 (3) (v) of the Public Health Act, 1935 and Regulation 2 of the Public Health (Infectious Diseases) Regulation, 2020.

Particulars of Offence

LR, EMOSI TABUASEI AND ALIVIO KALOKALODROMU, on 22nd day of April 2020, at Raiwaqa, in the Central Division, without lawful excuse, failed to comply with an order of the Permanent Secretary for Health and Medical Services, namely by breaching the curfew hours between 8.00 pm and 5.00 am which was set in place for the protection of public health.

COUNT 2

Statement of Offence

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

Particulars of Offence

LR, EMOSI TABUASEI AND ALIVIO KALOKALODROMU, in the company of each other, on the 22nd day of April 2020, at Raiwaqa, in the Central Division, entered into the property of DHL EXPRESS (FIJI) LTD as trespassers, with the intention to commit theft therein.

COUNT 3

Statement of Offence

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

Particulars of Offence

LR, EMOSI TABUASEI AND ALIVIO KALOKALODROMU, on the 22nd day of April 2020, at Raiwaqa, in the Central Division, in the company of each other, dishonestly appropriated 2 x Huawei mobile phone, 1 x Samsung A10 mobile phone, 1 x Samsung J1 mobile phone, 1 x Alcatel One Touch mobile phone, 1 x Nokia mobile phone and 1 x Logitech earpiece wireless, the property of DHL EXPRESS (FIJI) LTD with the intention of permanently depriving DHL EXPRESS (FIJI) LTD of its properties.

COUNT 4

Statement of Offence

RESISTING ARREST: Contrary to Section 277 (b) of the Crimes Act 2009.

Particulars of Offence

EMOSI TABUASEI, on the 23rd day of April 2020, at Jittu Estate, in the Central Division, resisted POLICE CONSTABLE 5383 SANAILA whilst the said POLICE CONSTABLE 5383 SANAILA was effecting arrest in the due execution of his duty.


[2] This matter has been consolidated with High Court Criminal Case No. HAC 141 of 2020. Accordingly on 15 July 2020, the DPP filed the Consolidated Information; while on 20 July 2020, the Consolidated Disclosures relevant to the case were filed.

[3] Emosi and Alivio, on 12 August 2020, you were ready to take your plea. On that day you pleaded not guilty to all counts in the Consolidated Information. However, on the 26 August 2020, your plea was taken once again. Emosi, you pleaded guilty to the four counts against you in the Consolidated Information (Counts 1-4). Alivio, you pleaded guilty to the three counts against you in the Consolidated Information (Counts 1-3). This Court was satisfied that you both pleaded guilty on your own free will and free from any influence. Court found that you both fully understood the nature of the charges against you and the consequences of your guilty pleas.

[4] Thereafter, the State filed the Summary of Facts. On 8 October 2020, the Summary of Facts were read out and explained to you and you both understood and agreed to the same. Accordingly, Court found your guilty pleas to be unequivocal. I found that the facts support all elements of the respective counts in the Consolidated Information, and found the respective counts proved on the Summary of Facts agreed by you. Accordingly, Emosi, I found you guilty on your own plea and I convicted you of Counts 1-4 as charged. Alivio, I found you guilty on your own plea and I convicted you of Counts 1-3 as charged.

[5] I now proceed to pass sentence on the two of you.

[6] The Summary of Facts filed by the State was as follows:

  1. The accused’s:
  2. The complainant – Anish Kumar (hereinafter known as ‘PW1’) is 27 years old Financial Accountant of DHL Express (Fiji) Ltd.
  3. On 22/4/20, PW1, Financial Manager of DHL, Raiwaqa came to work at about 7.30 am and as he walked in the office, he found that the office was scattered with papers scattered around and he suspected that there was a break in.
  4. PW1 checked the safe in the room and found it to be fully locked and then went outside to check the surrounding then saw one of window shutter been bent and four louver blades removed from which was the point of entry.
  5. PW1 called the Raiwaqa Police and lodged the report and also informed their Financial Controller.
  6. Later, Naman Deo – (hereinafter known as ‘PW2’) – IT Officer at DHL at around 10.02 am on 22/4/20 found out that some of the company mobile phones were missing. The following items were noted to be missing:-
  7. On 23/4/2020, PW2 was called to the Raiwaqa Police Station and shown 6 mobile phones that were seized by the police from one of the suspects and PW2 positively identified the same belonging to his company that were stolen from inside his drawer at their office in Raiwaqa.
  8. On 22/4/2020, PW2 upon having been informed by PW1 that there was a break-in at their office, he checked the digital video recorder at their server room and then played the footage from 8.00 pm (21/4/20) to 3.00 am (22/4/20) in the presence of PW1 and Police Constable 5036 Bogivitu of Raiwaqa Police Station.
  9. Upon viewing the footage at about 00.55 hrs (12.55 am), they saw 3 unknown person (i-Taukei) well covered their face trying to enter the office, then they climb up the roof using the iron post of generator shed.
  10. PW2 informed DC 5036 Bogivitu about the CCTV footage having captured 3 iTaukei youths entering the office and he requested PW2 to provide the footage of the incident in DVD form.
  11. PW2 extracted the footage from the DVR and copied it to the DVD and handed over to DC 5036 Bogivitu in Raiwaqa Police Station.
  12. PW2 is an IT Officer at DHL Express looking after the overall IT process of the company as desktop support engineer.
  13. Later DC 3641 – Lanieta – (hereinafter known as “PW3”) came to the DHL on 22/4/20 to assist DC 5036 Bogivitu at DHL and upon viewing the CCTV footage, he saw 3 suspects of whom 2 had their face well covered. However, the 3rd suspect appeared and he failed to hide his face and PW3 was able to identify him as Alivio Kalokalodromu.
  14. PW3 saw his face clearly and was surprised that he was wearing the same clothes that he was wearing yesterday evening in front of Grantham Plaza Shopping that is a black round neck, ¾ Lee (blue colour) and even the green wrist band that he was wearing could be clearly seen in the footage.
  15. PW3 stated that he dealt with Alivio on several occasions as he is well known in Raiwaqa and he had also visited his parents to talk to them about his attitude. PW3 stated that he can identify Alivio from a far distance, his walking style and his dressing style.
  16. PC 5383 Sanaila – (hereinafter known as “PW4”) conducted a search at Jittu Estate to look for suspects. They checked at all known location at Jittu Estate and Koroi Place but could not find the suspects.
  17. At 5.00 am on 23/4/20 – PW4 together with PC 5053 Aceni Toga and D/Sgt Peter conducted a raid at Jittu Estate, Raiwaqa whereby they arrested the suspect of break-in Emosi Tabuasei a.k.a Jahmoss (A1) who upon seeing the officers tried to evade them and ran.
  18. PW4 stopped him from jumping out of the window of his house by grabbing hold of his foot whilst he tried to jump. PW4 with the assistance of other officers overpowered him with reasonable force and pulled him down to the floor.
  19. A1 was violent during the time of his arrest and as a result of his resistance, the partition wall of this house was also damaged during his arrest.
  20. After the arrest was effected, A1 was informed properly the reason of his arrest and his rights were also administered to him and he was later escorted into the police vehicle and conveyed to Raiwaqa Police Station and handed to the charge room.
  21. Having effected the arrest of A1, Police also asked A1 where the stolen items were kept and A1 showed the police officers a brown bag which upon inspection by the police officers was discovered to contain 2 x black Huawei phone, 1 x Samsung A10, 1 x J1 Samsung phone and 1 x Alcatel One Touch phone which A1 voluntarily surrendered to PW4.
  22. PW4 then handed over the said phones to the Investigation Officer – DC 5036 Bogivitu Gaunavinaka upon reaching the Raiwaqa Police Station.
  23. PW4 together with other police officers was tasked to check for A2 also at the Jittu Estate and he went to his home and asked A2’s father who told the police officers that A2 was inside the house.
  24. A2 was called by his father to come outside and in the presence of A2’s father PW4 touched his shoulder and explained to him the reason for his arrest and A2 co-operated with the police.
  25. A2 was then escorted to the Raiwaqa Police Station and handed to the charge room personnel’s.

Record of Interview of A1

  1. A1 stated that on 22/4/20 he together with A2 and another were sitting at one driveway of Jim Garage at about 00.55hrs (Q & A – 38 to 40 of the ROI).
  2. A1 admitted that he was aware that it was curfew hours and was also heard in news that there is no movement between 8.00 pm to 5.00 am and no social gathering. However, he and his friends just wanted to move around (Q & A – 47 to 49 of the ROI).
  3. A1 stated that they all then came to the Raiwaqa Car Wash then they broke into DHL Express office and it was his idea to do the break-in (Q & A – 50 & 51 of the ROI).
  4. They all then came through Falvey Road then entered the cassava patch then jumped down the slope and landed on old cabinet and he told A2 to guard that place and make sure no one came near them or saw them (Q & A – 52 & 53 of the ROI).
  5. A1 and another then entered the DHL Express office by climbing up the iron post to the room then lever the grills using the iron rod and they pulled the grills and took out 3 louver blades and went inside (Q & A – 56 & 57 of the ROI).
  6. Iron rod used was shown to A1 and he confirmed the same to be the one they had used to lever the grill (Q & A – 58 of the ROI).
  7. A1 stated at this time A2 was on top as a lookout (Q & A – 59 of the ROI).
  8. A1 stated that he and another entered the DHL Office and ransacked the office and brought out the mobile phones which he got from inside one of the drawer (Q & A 60 to 63 of the ROI).
  9. He stated that he then took out the 5 mobile phones and put it inside a red Vodafone bag and then they exited again through the same way (Q & A – 64 of the ROI).
  10. A1 was shown the CCTV footage and he confirmed that was them in the footage from the clothes that he was wearing on the same day and that he could see himself, another and A2 and that it was the same night that they had broken into DHL Express, Raiwaqa (Q & A – 65 & 66 of the ROI).
  11. A1 was asked whether he took all six mobile phones home and he confirmed that they stole them all from DHL Express Office and it was recovered from him (Q & A – 70 & 71 of the ROI).
  12. A1 further stated that he knew that the mobile phones were the same that he had stolen from DHL Office as he was the one who stole it (Q & A – 72 of the ROI).
  13. A1 was taken for scene reconstruction by the police and he confirmed that the route taken by him together with others and how they entered into the DHL Express Office (Q & A – 76 to 78 of the ROI).

Record of Interview of A2


  1. A2 stated that on the day of the alleged incident, he was wearing a Lee ¾ pant colour blue with black tie on the head with grey cap and a green wrist band on his right wrist (Q & A – 63 of the ROI).
  2. A2 further informed the police that the said clothes were at home (Q & A – 64 of the ROI).
  3. A2 was shown a green BSP Bank wrist band which was seized from him and he confirmed it to be the same he was wearing in the footage shown him (Q & A – 65 of the ROI).
  4. A2 further confirmed that one wearing red check shirt was another whilst the one wearing blue hoodie with bucket hat was A1 (Q & A – 66 & 67 of the ROI).
  5. A2 stated that he knew A1 and another for almost 10 years now (Q & A – 68 of the ROI).
  6. A2 stated that whilst the A1 and another were inside the building, he stood outside a while and then went to the mango tree waiting for A1 and another for nearly an hour (Q & A – 72 & 73 of the ROI).
  7. A2 stated that he saw A1 and another come outside through the window they had entered and they came to the place he was standing under the mango tree (Q & A – 74 to 76 of the ROI).
  8. A2 stated that he saw another carried one Vodafone bag containing some item and A1 holding one Samsung J1 mobile phone and then the red Vodafone bag was torn and the item from inside fell off to the ground and he saw that it were some mobile phones (Q & A – 77 to 79 of the ROI).
  9. They then picked up the mobile and went of Falvey roundabout (Q & A – 80 of the ROI).
  10. A2 was shown the 6 mobile phones recovered from A1 and asked as to whether the mobile phones were the same 6 mobile phones stolen from the DHL Express Office on 22/4/2020 (Q & A – 81 of the ROI).
  11. A2 further confirmed that the red Vodafone bag (bag shown to the suspect) to be the same that another carried outside the building with some mobile phone inside (Q & A – 82 of the ROI).
  12. A2 was taken for scene reconstruction and he pointed out the creek where he jumped down to the back yard of the DHL building and the exact point he climbed of which he pointed at the iron post and further pointed to the place near the air conditioner he was standing when A1 with another entered the building (after Q & A 85 and before 86 of the ROI).
  13. A2 was shown the iron rod which was used to bend the grill and also the same rod thrown to another by him and he confirm to be the same (Q & A – 89 of the ROI).
  14. He was also shown a black t-shirt and blue lee pant and he confirmed that he wore the same on 22/04/2020 as seen in the footage together with the wrist band which was shown to him (Q & A 0 90 & 91 of the ROI).
  15. He also agreed that he and others failed to comply with the orders of the curfew order by gathering together which breached the gathering restriction order by the Permanent Secretary of Health (Q & A – 92 & 93 of the ROI).
  16. A2 stated that it was A1 and another who entered the DHL building and stole the mobile phones (Q & A – 94 of the ROI).
  17. He further admitted to have known that it was an offence what he did on 22/04/2020 at 00.55 hours and knew that he could be prosecuted for the same and stated that it was A1’s plan and they were influenced and should therefore be blamed for the offence (Q & A – 96 to 98 of the ROI).
  18. A1 and A2 are charged and have pleaded guilty to the charges against them in the information read in the Court dated 14th July, 2020.
  19. Part of the stolen items were recovered from A1’s residence that is 2 x black Huawei phone, 1 x Samsung A10 phone, 1 x J1 Samsung phone, 1 x Alcatel One Touch phone and 1 x Nokia Mobile phone (damaged) and same was identified by Naman Deo of DHL Express (Fiji) Ltd as the phones belonging to the company stolen from inside the drawer in their office in Raiwaqa.
  20. Annexed herewith is the copy of the record of interview of A1 and A2 marked ‘A’ and ‘B’ respectively.
  21. Also annexed herewith is the copy of search list dated 23/4/20 at the dwelling house of Emosi Tubuasei conducted in the presence of DC 5694 Vanaisa, DC 5290 Viliame and PC 5383 Sanaila marked as ‘C’.

[7] Emosi and Alivio, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[8] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[9] I have duly considered the above factors in determining the sentence to be imposed on you.

[10] I will first consider the sentences to be imposed against the two of you in respect of Counts 2 (Aggravated Burglary) and 3 (Theft).

[11] In terms of Section 313 (1) of the Crimes Act, “A person commits an indictable offence (of Aggravated Burglary) if he or she-

(a) Commits a burglary in company with one or more other persons; or
(b) ...........”

The offence of ‘Burglary’ is defined at Section 312 (1) of the Crimes Act as follows: “A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building”.

The offence of Aggravated Burglary in terms of Section 313 (1) of the Crimes Act carries a maximum penalty of 17 years imprisonment.

[12] 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).

[13] The Court of Appeal in Leqavuni v. State [2016] FJCA 31; AAU 106.2014 (26 February 2016), observed that the tariff for Aggravated Burglary is between 18 months to 3 years.

[14] This Court has been consistently following the tariff of 18 months to 3 years imprisonment for Aggravated Burglary: Vide State v. (Venasio) Cawi & 2 others [2018] FJHC 444; HAC 155.2018 (1 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 536; HAC 92.2018 (20 June 2018); State v. Pita Tukele & 2 others [2018] FJHC 558; HAC 179.2018 (28 June 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 995; HAC 92.2018 (17 October 2018); State v. (Maika) Raisilisili [2018] FJHC 1190; HAC 355.2018 (13 December 2018); State v. (Taione) Waqa & 2 others [2018] FJHC 1209; HAC 92.2018 (18 December 2018); State v. Michael Bhan [2019] FJHC 661; HAC 44.2019 (4 July 2019); State v. Etika Toka HAC 138.2019 (1 November 2019); State v. Vakacavuti HAC337.2018 (7 November 2019); State v. Vakacavuti [2019] FJHC 1088; HAC338.2018 (7 November 2019); State v. Peniasi Ciri and Another [2020] FJHC 63; HAC14.2019 (6 February 2020); State v. Maikeli Turagakula and Another [2020] FJHC 101; HAC416.2018 (19 February 2020); State v. (Sachindra Sumeet) Lal & Another [2020] FJHC 147; HAC71.2019 (26 February 2020); State v. (Rupeni) Lilo [2020] FJHC 401; HAC225.2018 (9 June 2020); State v. (Taniela) Tabuakula [2020] FJHC 464; HAC106.2020 (23 June 2020); State v. (Eric Male) Robarobalevu [2020] FJHC 630; HAC102.2020 (6 August 2020); State v. (Usaia) Delai [2020] FJHC 631; HAC7.2020 (6 August 2020); State v Vakawaletabua [2020] FJHC 645; HAC441.2018 (11 August 2020); State v. (Sakeasi) Seru and Another [2020] FJHC 770; HAC136.2020 (18 September 2020) and State v. (Kunal Edwin) Prasad [2020] FJHC 785; HAC115.2020 (23 September 2020).
[15] In terms of Section 291 (1) of the Crimes Act “A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property”. The offence of Theft in terms of Section 291 (1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[16] In Ratusili v. State [2012] FJHC 1249; HAA011.2012 (1 August 2012); His Lordship Justice Madigan proposed the following tariff for the offence of Theft:

“(i) For a first offence of simple theft the sentencing range should be between 2 and 9 months.

<(ii) Any subsequbsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not ctract sentences of up to thto three years.


(iv) Regard should be had to the nature of the relationship between offender and victim.


(v) Planned thefts will attract greater sentences than opportunistic thefts.”


[17] Since the theft in this case involved property of high value, and was consequent to the two of you entering the commercial premises of the complainant as trespassers, this cannot be considered as theft simpliciter. Therefore, it is my opinion that the appropriate tariff in this case should be in the range of 2 months to 3 years imprisonment for the offence of Theft.

[18] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[19] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Emosi and Alivio, I commence your sentences at 18 months imprisonment for the second count of Aggravated Burglary.

[20] Similarly, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Emosi and Alivio, I commence your sentences at 6 months imprisonment for the third count of Theft.

[21] The aggravating factors are as follows:

(i) The frequent prevalence of these offences in our society today.

(ii) The two of you and your accomplice trespassed into the commercial premises of the complainant, in the late hours of the night, thereby paying scant regard to the privacy of the complainant.

(iii) I find that there was some amount of pre-planning or pre-meditation on your part in committing these offences.
(iv) You both are now convicted of multiple offending.
(v) Emosi you have also pleaded guilty and been convicted in HAC 131 of 2020, which is also a similar case of Aggravated Burglary and Theft, committed barely two weeks prior to this incident.

[22] In mitigation you both have submitted as follows:

(i) That you are a first offenders and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.

(ii) That you fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.

(iii) You have submitted that you are truly remorseful of your actions and assured Court that you will not re-offend.

(iv) It is submitted that you are seeking forgiveness from the complainant for your actions and that you are also seeking forgiveness from this Court.

(v) A part of the stolen property was recovered with your assistance.

(vi) That you entered guilty pleas at an early stage of these proceedings.

[23] Considering the aforementioned aggravating factors, Emosi I increase your sentence by a further 4 years and 6 months. Now your sentence for count two would be 6 years imprisonment. Your sentence for count three would be 5 years imprisonment.

[24] Emosi I accept that you are a person of previous good character and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and also the fact that part of the stolen property was recovered with your assistance. Accordingly, considering the mitigating factors, I deduct 2 years and 6 months from your sentences. Now your sentence for count two would be 3 years and 6 months imprisonment. Your sentence for count three would be 2 years and 6 months imprisonment.

[25] Emosi I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court. For your early guilty plea I grant you a further discount of 12 months for count two. Since I propose to make your sentences concurrent I do not deem it necessary to grant you any further discount for count three in lieu of this factor.

[26] Considering the aforementioned aggravating factors, Alivio I increase your sentence by a further 4 years. Now your sentence for count two would be 5 years and 6 months imprisonment. Your sentence for count three would be 4 years and 6 months imprisonment.

[27] Alivio I accept that you are a person of previous good character and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and also the fact that part of the stolen property was recovered. Accordingly, considering the mitigating factors, I deduct 2 years and 6 months from your sentences. Now your sentence for count two would be 3 years imprisonment. Your sentence for count three would be 2 years imprisonment.

[28] Alivio I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court. For your early guilty plea I grant you a further discount of 12 months for count two. Since I propose to make your sentences concurrent I do not deem it necessary to grant you any further discount for count three in lieu of this factor.

[29] I will now deal with the sentence to be imposed on you in respect of the first count.

[30] Section 69(1) of the Public Health Act 1935 stipulates the powers of the Minister of Health under the said Act. In terms of section 69(1) (c) the Minister has the power ‘to do all such other things as the [Health] Minister may deem necessary for the protection of public health’.

[31] Section 69(3) of the Public Health Act stipulates the powers of the Permanent Secretary for the Ministry of Health. In terms of section 69(3)(a)(v) of the said Act, the relevant Permanent Secretary has the power ‘to prohibit, order and regulate conditionally or unconditionally the movements of persons, . . . including the assembling together, whether habitual or occasional, of either adults or children’, subject to the approval of the relevant Minister [Minister of Health].

[32] It is clear that the power of the relevant Permanent Secretary for the Ministry of Health is to be exercised subject to the approval of the Minister of Health and the power of the Minister of Health to grant such approval is derived from section 69(1)(c) of the Public Health Act.

[33] Extraordinary Gazette No.32 published on 4 April 2020 includes the following notice given by the Permanent Secretary for Health and Medical Services;

“I hereby give notice of the following orders, which were made pursuant to section 69(3) of the Public Health Act 1935 for the protection of public health, approved by the Minister for Health and Medical Services and publicly announced on 2 April 2020 –

............Except for the purpose of travelling for work, seeking medical care or an emergency, a curfew from 8 pm until 5 am now applies to the whole of Fiji, with effect from 3 April 2020.”

[34] The Public Health (infectious Disease) Regulation 2020 makes it an offence to violate the said curfew. Regulation 2 of the said Regulation reads as follows:

“Any person who fails to comply with an order, prohibition, declaration issued pursuant to Section 69(1)(c) or (3) of the Public Health Act commits an offence and is liable to a fine not exceeding $10,000 or imprisonment of 5 years or both.”

[35] Accordingly, considering the objective seriousness of this offence and taking into consideration the nature and the gravity of the offence and your culpability and degree of responsibility for the offence, and also taking into consideration the aggravating factors and the mitigating factors, I impose on each of you a sentence of 1 years’ imprisonment for the first count of Failure To Comply With Orders.

[36] Emosi you have also been found guilty and convicted of Resisting Arrest in contravention of Section 277 (b) of the Crimes Act (Count 4).

[37] Section 277 of the Crimes Act reads as follows:

277. A person commits a summary offence if he or she—

(a) assaults any person with intent to commit an indictable offence, or to resist or prevent the lawful apprehension or detention of himself, herself or of any other person for any offence; or

(b) assaults, resists or wilfully obstructs any police officer in the due execution of his or her duty, or any person acting in aid of such an officer; or

(c) assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, business or manufacture or respecting any person concerned or employed by it; or

(d) assaults, resists or obstructs any person—

(i) engaged in lawful execution of court process; or in

(ii) making a lawful distress, with intent to rescue any property lawfully taken under such distress; or

(e) assaults any person on account of any act done by him or her in the execution of any duty imposed by law.

[38] The maximum penalty prescribed by the Section prior to the amendment referred to below, was 5 years imprisonment. The tariff was a sentence between 6 months and 12 months imprisonment.

[39] Section 277 has been amended by the Crimes (Amendment) Act No 5 of 2018 (Dated 21 March 2018) as follows:

Section 277 of the Crimes Act 2009 is amended by deleting "Penalty — Imprisonment for 5 years." and substituting the following—
"Penalty—

[40] Accordingly, Emosi considering the objective seriousness of this offence and taking into consideration the nature and the gravity of the offence and your culpability and degree of responsibility for the offence, and also taking into consideration the aggravating factors and the mitigating factors, I impose on you a sentence of 1 years’ imprisonment for the fourth count of Resisting Arrest.

[41] In the circumstances, Emosi your sentences are as follows:

Count 1- Failure to Comply with Orders- 1 years’ imprisonment.

Count 2- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-2 years and 6 months imprisonment.


Count 3- Theft contrary to Section 291 (1) of the Crimes Act –2 years and 6 months imprisonment.


Count 4- Resisting Arrest contrary to Section 277 (b) of the Crimes Act –1 years’ imprisonment.


I order that all sentences of imprisonment to run concurrently. Therefore, your final total term will be 2 years and 6 months imprisonment.

[42] In the circumstances, Alivio your sentences are as follows:

Count 1- Failure to Comply with Orders- 1 years’ imprisonment.


Count 2- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-2 years imprisonment.


Count 3- Theft contrary to Section 291 (1) of the Crimes Act –2 years imprisonment.


I order that all sentences of imprisonment to run concurrently. Therefore, your final total term will be 2 years imprisonment.

[43] The next issue for consideration is whether your sentences should be suspended.

[44] Section 26 of the Sentencing and Penalties Act provides as follows:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[45] Emosi you are now 20 years of age [Date of birth 2 March 2000]. At the time of offending you would have just turned 20. You are said to be single and a student.

[46] Emosi You were arrested for this case around the 22 April 2020 and have been remanded in custody since that day. That is a period of 7 months.

[47] Alivio today you turn 19 years [Date of birth 27 November 2001]. At the time of offending you would have been just over 18 years. You are said to be single and living with your parents at Veiquwawa Settlement in Vatuwaqa.

[48] On 18 May 2020 you have enrolled at the Fiji National University – Nabua Sanatan Campus, Technical College of Fiji. You have been enrolled in Certificate 11 in Fabrication and Welding of which you are said to have successfully completed Quarter 1 and have been enrolled for Quarter 2. You have stated that you wish to re-enrol in the program and complete your education so as to support your family.

[49] Alivio you were arrested for this case around the 22 April 2020 and have been remanded in custody since that day. That is a period of 7 months.

[50] In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held:

“....However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”

[51] In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held:

“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”

[52] I have considered the following circumstances:

Accordingly, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentences.

[53] However, Emosi as mentioned before, today I will be sentencing you for this case and for the connected matter that you have been convicted, HAC 131 of 2020, which is also a similar case of Aggravated Burglary and Theft, committed a few days apart. Therefore, in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentence for a period of 7 years.

[54] In the result, your final sentence of 2 years and 6 months imprisonment, is suspended for a period of 7 years. You are advised of the effect of breaching a suspended sentence.

[55] For the purpose of clarity, in the event you are found guilty and convicted for any offence, which is punishable by imprisonment, committed in the next 7 years, the operational period, the suspended sentence of 2 years and 6 months imprisonment imposed in this case will have to be served consecutive to the suspended sentence of 2 years and 6 months imprisonment I am imposing in HAC 131 of 2020.

[56] Alivio in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentence for a period of 5 years.

[57] In the result, your final sentence of 2 years imprisonment, is suspended for a period of 5 years. You are advised of the effect of breaching a suspended sentence.

[58] You have 30 days to appeal to the Court of Appeal if you so wish.


Riyaz Hamza
JUDGE

HIGH COURT OF FIJI


AT SUVA
Dated this 27th Day of November 2020


Solicitors for the State: Office of the Director of Public Prosecutions, Suva.

Solicitors for the 1st and 2nd Accused: Office of the Legal Aid Commission, Suva.

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