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State v Betu - Sentence [2021] FJHC 415; HAC162.2020 (13 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 162 of 2020

STATE

V

1. EMOSI BETU
   
2. MESAKE MEKEMEKE
   

Counsel : Ms. S. Naibe for the State.

Ms. S. Ali for both the Accused.

Date of Submissions: 13 December, 2021

Date of Sentence : 13 December, 2021

SENTENCE

1. Both the accused persons are charged with the following offences as per the information filed by the Director of Public Prosecutions dated 18^th January, 2021:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

EMOSI BETU and MESAKE MEKEMEKE, on the 18^th day of September, to the 27^th day of September, 2020 at Rakiraki in the Western Division entered into the dwelling house of KELERA HEWE as trespassers with intent to commit theft.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

EMOSI BETU and MESAKE MEKEMEKE, between18^th day of September to the 27^th day of September, 2020 at Rakiraki in the Western Division dishonestly appropriated, 1 x grey HP brand laptop; 1 x black Phillips speaker; 1 x red rug; 2 x Fijian mats; 1 x blue travelling bag; 1 x red shoulder bag; 1 x 4 kg rice, 6 x eggs; 2 x electric fans; 1 x pair of canvas; 1 x black power bank the property of KELERA HEWE with the intention of permanently depriving KELERA HEWE.

2. On 26^th March, 2021 both the accused persons pleaded guilty to both counts mentioned above in the presence of their counsel.
   
3. Thereafter on 29^th November, 2021 both the accused persons admitted the summary of facts read by the state counsel. The summary of facts is as follows:
   

On 18^th September 2020, the victim left her home to go and spend her holidays with her family at Batiri village, Nadroga after securely locking her house. When the victim returned home on 27^th September, she noticed the front door of the house open, upon checking she noticed the following items were missing:

(a) 1 x grey HP brand laptop valued at $860.00;
(b) 1 x black Phillips speaker valued at $270.00;
(c) 1 x red rug valued at $100.00;
(d) 2 x Fijian mats valued at $420.00;
(e) 1 x blue travelling bag valued at $59.00;
(f) 1 x red shoulder bag valued at $65.00;
(g) 1 x 4 kg rice valued at $7.95;
(h) 6 x eggs valued at $3.00;
(i) 2 x electric fans valued at $98.00;
(j) 1 x pair of canvas valued at $25.00;
(k) 1 x black power bank valued at $25.00;

All to the total value of $1,932.95.

4. The matter was reported to the police and an investigation was carried out, both the accused persons were arrested and interviewed under caution. They admitted committing the offences in their respective caution interviews, the first accused at Q & A 44 to 48, second accused at Q & A 38 to 39 and 49 to 54.
   
5. 5. After considering the summary of facts read by the state counsel which was admitted by both the accused persons and upon reading their caution interviews, this court is satisfied that both the accused persons have entered an unequivocal plea of guilty on their own freewill. This court is also satisfied that both the accused persons have fully understood the nature of the charges and the consequences of pleading guilty. The summary of facts admitted by the accused persons satisfies all the elements of the offence of aggravated burglary and theft they are charged with. The accused persons also admitted committing both the offences in the company of each other.
   
   6. In view of the above, this court finds both the accused persons guilty as charged and they are convicted accordingly.
      
   7. The two offences with which both the accused persons have been convicted are founded on the same facts hence it is only proper that an aggregate sentence be imposed.
      

8. Section 17 of the Sentencing and Penalties Act states:

“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.”

9. Both counsel have filed written sentence and mitigation submissions for which this court is grateful.
   

10. The counsel for both the accused presented the following mitigation:

Accused one – Emosi Ratu

1. He was 18 years at the time;
2. First offender;

100. Has recently found employment;

4. Resides with his parents and 2 siblings;
5. Pleaded guilty at the earliest opportunity;
6. Cooperated with the police;
7. Recovery of items valued at $1,863.00
8. Is remorseful of his actions;
9. Promises not to reoffend.
   

Accused two – Mesake Mekemeke

1. He was 20 years at the time;
2. First offender;

100. Is a farmer;

4. Resides with his parents and 4 siblings;
5. Pleaded guilty at the earliest opportunity;
6. Cooperated with the police;
7. Recovery of items valued at $1,863.00;
8. Is remorseful of his actions;
9. Promises not to reoffend.
   

TARIFF

11. The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.
    
12. The accepted tariff for this offence is a sentence between 18 months to 3 years imprisonment (see Leqavuni v. State, Criminal Appeal No. AAU 106 of 2014 (26 February, 2016).
    
13. For the offence of theft the maximum penalty iyears imprisonment.
    
14. The tariff for the offence of theft is settled. In Mikaele Ratusilitate,

Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set

(ii) absequffence should attd attract a penalty of at least 9 months.

(iii) Theft of laof large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to 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.”

AGGRAVATING FACTORS

15. The following aggravating factors are obvious:
    
    1. Night time invasion of property

It was during the night both the accused persons forcefully entered the property of the victim. They were bold and undeterred.

2. Planning

There is some degree of planning involved the accused persons knew the victim was not at home and they forcefully entered the house to enter.

100. Prevalence of the offence

The offences committed are very prevalent nowadays that people are reluctant to leave their properties unattended.

16. Considering the objective seriousness of the offending, I select 18 months imprisonment (lower range of the tariff) as the aggregate starting sentence of both the offences. The sentence is increased for the aggravating factors and reduced for mitigation, early guilty plea, and the remand period.

17. The final aggregate sentence for the two accused persons is 2 ½ years imprisonment. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspend the final sentence since it does not exceed 3 years imprisonment.
    
18. In State vs. Alipate Sorovanalagi and others, Revisional Case No. HAR 006 of 2012 (31 May 2012), Goundar J. reiterated the following guidelines in respect of suspension of a sentence at paragraphs 22 and 23:

“[22] I accept that the Magistrates' Court has discretion to suspend a sentence if the final term imposed is 2 years or less. But that discretion must be exercised judiciously, after identifying special reason to suspend the sentence. The special reason can vary depending on the facts of each case.

[23] In DPP v Jolame Pita (1974) 20 FLR 5, Grant Actg CJ (as he then was) held that in order to justify the imposition of a suspended sentence, there must be factors rendering immediate imprisonment inappropriate. In that case, Grant Actg CJ was concerned about the number of instances where suspended sentences were imposed by the Magistrates' Court and those sentences could have been perceived by the public as 'having got away with it'. Because of those concerns, Grant Actg CJ laid down guidelines for imposing suspended sentence at p.7:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence as, for example, the misappropriation of a modest sum not involving a breach of trust, or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate."

19. The following relevant special circumstances or special reasons for the suspension of the imprisonment term in my view needs to be weighed in choosing an immediate imprisonment term or a suspended sentence.
    
20. The accused persons are first offenders of comparatively good character, isolated offences committed, are in their early twenties, pleaded guilty at the earliest opportunity, are remorseful, substantial recovery of stolen items, cooperated with police during the investigations and they take full responsibility of their actions. I consider these special reasons as rendering immediate imprisonment inappropriate.
    
21. Both the accused persons are young offenders, and an imprisonment term will not augur well for their future, they have been in remand for about 1 month which is in itself an adequate and appropriate punishment. This court has taken into account rehabilitation over and above retribution.
    
22. Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that the sentence is just in all the circumstances of the case.
    
23. In summary both the accused are sentenced to 2½ years’ imprisonment respectively as an aggregate sentence for both the offences which is suspended for 3 years. The effect of suspended sentence is explained to both the accused.
    
24. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
13 December, 2021

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