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State v Matanakilagi [2022] FJHC 163; HAC043.2021S (1 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 043 OF 2021S

STATE
Vs

1. MOSESE MATANAKILAGI
2. JOSAIA KURUWACA RABA alias JOSEFA RABA
3. SOLOMONI WAQAIRATU
   

Counsels : Mr. Z. Zunaid for State
Ms. T. Kean for Accused No. 1

Ms. L. Manulevu for Accused No. 2

Ms. S. Daunivesi for Accused No. 3
Hearings : 19 November, 2021 and 25 February, 2022.
Sentence : 1 April, 2022.

SENTENCE

1. On 19 November 2021, the following amended information was read over and explained to each of the accuseds, in the presence of their counsels:
   

“Count 1

Statement of Offence

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

Particulars of Offence

MOSESE MATANAKILAGI, JOSAIA KURUWACA RABA alias JOSEFA RABA & SOLOMONI WAQAIRATU, in the company of each other, on the 21^st day of January, 2021 at Samabula in the Southern Division, entered the property of QINGHE ZHANG, as trespassers with intent to commit theft.

Count 2

Statement of Offence

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

Particulars of Offence

MOSESE MATANAKILAGI, JOSAIA KURUWACA RABA alias JOSEFA RABA & SOLOMONI WAQAIRATU, in the company of each other, on the 21^st day of January, 2021 at Samabula in the Southern Division, dishonestly appropriated 1 x Tolsen branded yellow tool box containing working tools, the properties of QINGHE ZHANG with the intention of permanently depriving QINGHE ZHANG of the said properties.”

2. They said, they understood the same and out of their own free will, they pleaded guilty to the same.
   
3. The prosecution then read the summary of facts to them. Briefly, they were as follows. On 21 January 2021, the date of the incident, Accused No. 1 was 19 years old, unemployed of Lovoni Settlement. He reached Form 5 level education at Naikavaki College, Bua. He resided with his uncle’s family, as his parents were divorced. Accused No. 2 was 18 years old, employed at Boys (Pacific Tent), and resided with his parents and siblings at Lovoni settlement. He reached Form 6 level education at Ratu Kadavulevu School in 2019. Accused No. 3 was 22 years old. He reached Form 3 level education at LDS College, Tamavua. He resided with his family at Nauluvatu Settlement, Suva. He does subsistence farming for a living.
   
4. The complainant was 28 years old and resided at Uluvatu Road, Samabula. On 21 January, 2021, a Thursday, at about 9.40 pm, the complainant was in his bedroom. He heard someone trying to break into his bedroom. In fact, the three accuseds, in the company of each other, had entered his property as trespassers with intent to steal. The three accuseds, as a group, saw the complainant’s Tolsen branded tool box containing working tools. They stole the same, and fled the complainant’s property. The matter was reported to police. An investigation was carried out. All three accuseds were later arrested and caution interviewed by police. They all admitted the allegations in count no. 1 and 2. They were brought before the Suva Magistrate Court on 29 January 2021.
   
5. The three accuseds admitted the above summary of facts in court. As a result of the above admissions, the court found each accused guilty as charged on both counts, and convicted each accused on both counts.
   
6. The prosecution said in court that all accuseds were first offenders. The defence then presented each accused’s plea in mitigation. For Accused No. 1, counsel submitted, he was 19 years old, single, with no children. He was previously employed as a loading boy for Narhari Electrical Company, earning $24 per day. His parents separated when he was in Form 4. He was a first offender and pleaded guilty to the offence. The stolen property was recovered. He had been remanded in custody for more than 9 month. He fully co-operated with police.
   
7. As for Accused No. 2, counsel submitted, he was 19 years old now, single, with no children. He resided with his parents and siblings. He reached Form 6 level education. He was a first offender. He pleaded guilty and had been remanded in custody for more than 9 months. The stolen property was recovered. For Accused No. 3, counsel submitted, he was 22 years old, single with no children. He was a first offender. He pleaded guilty. He had been remanded in custody for more than 9 months.
   
8. “Aggravated burglary” is an indictable offence, and viewed seriously by the Parliament of Fiji. It carried a maximum sentence of 17 years imprisonment (see section 313 (1) (a) of the Crimes Act 2009). The tariff is now a sentence between 6 to 14 years imprisonment: State v Shavneel Prasad, Criminal Case No. 254 of 2016S, High Court, Suva and State v John Vonu & Others, Criminal Case No. HAC 148 of 2017S, High Court, Suva. Of course, the final sentence will depend on the aggravating and mitigating factors.
   
9. The maximum penalty for “theft”, contrary to section 291 (1) of the Crimes Act 2009, is a sentence of 10 years imprisonment.
   
10. I can’t find any aggravating factors in you three’s case. The elements of “aggravated burglary” and “theft” are satisfied on the facts of the case and cannot be taken into account as aggravating factors.
    
11. The mitigating factors are as follows:
    • (i) Accused No. 1, you are 19 years old and a first offender. Accused No. 2, you are also 19 years old and a first offender. Accused No. 3, you are 22 years old and a first offender.
    • (ii) You all pleaded guilty to the offences, 9 months 7 days after first call in the High Court. You nevertheless saved the court’s time.
    • (iii) The stolen property you stole in count no. 2 was recovered.
    • (iv) You were each remanded in custody for 9 months 24 days each.
      
12. I start with count no. 1 (aggravated burglary). I start, for each of you, with a sentence of 6 years imprisonment. For being first offenders, I deduct 2 years, leaving a balance of 4 years imprisonment. For time already served while remanded in custody, I deduct another 10 months, leaving a balance of 3 years 2 months imprisonment. For pleading guilty, I deduct another 1 year 2 months, leaving a balance of 2 years imprisonment. For the stolen property been recovered, I deduct another 6 months, leaving a balance of 18 months imprisonment.
    
13. On count no. 2 (theft), I sentence each of you to 12 months imprisonment.
    
14. The summary of your sentences are as follows:
    • (i) Count No. 1 - Aggravated Burglary - 18 months imprisonment
    • (ii) Count No. 2 - Theft - 12 months imprisonment
      
15. Because of the totality principle of sentencing, I direct that the above sentences are made concurrent to each other, making a final sentence of 18 months imprisonment, for each of you.
    
16. Mr. Mosese Matanakilagi, Mr. Josaia Kuruwaca Raba alias Josefa Raba and Mr. Solomoni Waqairatu, for the offences you each committed against Mr. Qinghe Zhang on 21 January 2021, at Samabula in the Central Division, I sentence each of you to 18 months imprisonment.
    
17. Because you each had served 9 months 24 days, while remanded in custody awaiting trial, I suspend the above 18 months imprisonment for 3 years from today.
    
18. Meaning of suspended sentence explained to each accused.
    
19. The complainant’s property to be returned to him as soon as possible.
    
20. Each of you have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
Judge

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accuseds : Legal Aid Commission, Suva.