IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION 
Criminal Case No.’s:    HAC 107 of 2020
HAC169 of 2020
HAC171 of 2020
HAC172 of 2020
STATE
V
1)  A.L and Another   [Juvenile One]
2)  A.L and T.T           [Juvenile One and Two]
3)  A.L and T.T	[Juvenile One and Two]
4)  A.L and T.T            [Juvenile One and Two]

Counsel		   :	Mr. U. Lal and Mr. T. Tuenuku for the State.
				Ms. J. Singh for the Juveniles. 

Date of Submissions:	18 March, 2022
Date of Hearing	   :	21 March, 2022
Date of Punishment:	04 April,   2022
PUNISHMENT
(The names of both the juveniles are suppressed they will be referred to as “A.L”, and “T.T” respectively).
1.	Both juveniles are charged by virtue of the following information filed by the Director of Public Prosecutions dated 5th August, 2020 (three counts, HAC 107 of 2020 for “A.L”), 27th January, 2021 (two counts for “A.L” and “T.T” HAC 169 of 2020), 28th January, 2021 (two counts for “A.L” and “T.T” HAC 171 of 2020) and 28th January, 2021 (HAC 172 of 2020) respectively: 

	HAC 107 of 2020

A. L and another are charged with the following offences:

FIRST COUNT 
  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 section 2 of Public Health (Infectious Diseases) Regulations 2020.

Particulars of Offence
KOTOISUVA TIKOMAIMALEYA WAQA and A.L on the 4th day of June, 2020, at Lautoka in the Western 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 10pm to 5am which were set in place for the protection of public health.

SECOND COUNT
Statement of Offence
AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of the Crimes Act 2009.

Particulars of Offence
KOTOISUVA TIKOMAIMALEYA WAQA and A.L on the 4th day of June, 2020 at Lautoka in the Western Division, entered into the dwelling house of LILA PILLAY as trespassers, with intent to commit theft from the said property.
THIRD COUNT
Statement of Offence
ATTEMPTED THEFT: Contrary to section 44 (1) and 291 (1) of the Crimes Act 2009.
Particulars of Offence
KOTOISUVA TIKOMAIMALEYA WAQA and A.L on the 4th day of June, 2020 at Lautoka in the Western Division, attempted to dishonestly appropriate 1 x 42 inch flat screen TV and assorted perfumes, the property of LILA PILLAY with the intention of permanently depriving the said LILA PILLAY.

	HAC 169 of 2020

A.L and T.T are charged with the following offences:

COUNT ONE
  Statement of Offence
AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of the Crimes Act 2009.

Particulars of Offence
A.L and T.T on the 2nd day of October, 2020 at Banaras, Lautoka in the Western Division, entered into the dwelling house of MI OK SEO, as trespassers, with intent to steal from therein.

COUNT TWO
Statement of Offence
THEFT: Contrary to section 291 (1) of the Crimes Act 2009.

Particulars of Offence
A.L and T.T on the 2nd of October 2020, at Banaras, Lautoka in the Western Division, dishonestly appropriated, 2 x cartons of whipping cream, ½ carton of chicken breast, 1 x carton of anchor butter and assorted ham and bacon, the properties of MI OK SEO, with the intention of permanently depriving the said MI OK SEO of the said properties. 

HAC 171 of 2020

A.L and T.T are charged with the following offences:

FIRST COUNT 
  Statement of Offence
AGGRAVATED BURGLARY Contrary to section 313 (1) (a) of the Crimes Act 2009.
Particulars of Offence
A.L and T.T on the 2nd day of October, 2020 at Lautoka in the Western Division, entered as trespassers into the dwelling house of ANAND KRISHNA with intent to commit theft from the said property.

SECOND COUNT 
Statement of Offence
THEFT: Contrary to section 291 (1) of the Crimes Act 2009.

Particulars of Offence
A.L and T.T on the 2nd of October 2020, at Lautoka in the Western Division, dishonestly appropriated (stole):

a.	1 x Panasonic 32 inch flat screen television;
b.	1 x Lenovo laptop;
c.	1 x Remington hair straightener the said properties of ANAND KRISHNA with the intention of permanently depriving the said ANAND KRISHNA.

HAC 172 of 2020

A.L and T.T are charged with the following offences:

FIRST COUNT 
  Statement of Offence
AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of the Crimes Act 2009.
Particulars of Offence
A.L and T.T between the 11th of September 2020 and 12th of September 2020, at Velovelo, Lautoka, in the Western Division, entered into the dwelling house of MALCOM PECHAM as trespassers with intent to steal from therein.
SECOND COUNT 
Statement of Offence

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

Particulars of Offence
A.L and T.T between the 11th of September 2020 and 12th of September 2020, at Velovelo, Lautoka, in the Western dishonestly appropriated, 1 x Samsung A58 mobile phone, 1 x black Bose speaker, 1 x Samsung tablet, 1 x Vodafone Wi-Fi device and $200 cash, the properties of MALCOM PECHAM with the intention of permanently depriving the said MALCOM PECHAM, of the said properties.
	
2.	On various dates when the files were called in court both juveniles pleaded guilty to the counts in all the files in the presence of their counsel. Thereafter on various dates both the above mentioned juveniles admitted the summary of facts read in each file as follows:.
 
         HAC 107 of 2020

On the 3rd June, 2020 at about 10pm, Lila Pillay (PW1) of R.A. Patel Road, Tavakubu, Lautoka, had securely locked her house and left for her brother in-law’s place in Simla, Lautoka.

At around 2.30am on the 4th June, 2020, Temo Qalobula (PW2), a Police Officer of Lautoka Police Station, whilst on patrol received information that there was a break in at a house at R.A. Patel road, Tavakubu, Lautoka.  As PW2 and his team proceeded to the scene, he saw that the house was opened, items were scattered and he saw movement inside the house.  By the time PW2 moved closer, he saw someone ran towards the back of the house.

At about 3.35am, on the 4th June, 2020, PW1 received a call from the police that her house had been broken into.  PW1 went to her house and saw that someone had entered her house through the sitting room window.  She discovered that some of the items inside the house had been moved but nothing was stolen.  She saw that her flat screen TV had been removed from the TV rack and placed on the settee.  Assorted clothes and perfume were taken out of her suitcase which was inside her bedroom and placed beside the settee.

The Juvenile was later arrested and interviewed under caution.  The Juvenile admitted in his caution interview that he entered PW1’s house and when the police arrived he ran away but was later arrested.  (Q & A 88, 96, 98, 108, 109, 110, 116, 117, 119 & 131) [Attached is a copy of the Record of Interview].  He admitted that at the time he went to R.A. Patel Road, Tavakubu, Lautoka, it was around 12am hence, this was during the nationwide curfew hours.

The Juvenile was subsequently charged for the offence of Failure to Comply with Orders, Aggravated Burglary and Attempt to Commit Theft [Attached is a copy of Charge Statement]

HAC 169 of 2020

Briefly, A.L and T.T are jointly charged with one count of aggravated burglary and one count of theft. Both juveniles have pleaded guilty to these offences.
Incident
1.	On the 2nd of October 2020, the juveniles broke into the house of Mi Ok Seo (the complainant) stealing the following:

i.	2 x cartons of whipping cream;
ii.	1 x ½ carton of chicken breast;
iii.	1 x carton of Anchor butter;
iv.	Assorted ham and bacon.

2.	The complainant was the owner of these properties. The juveniles entered the store room of the complainant’s house by opening the door of the storeroom since it was not locked. The juveniles after entering the store room of the complainant’s house, stole the abovementioned items from deep freezer.

3.	Information from the investigation led to the arrest of the juveniles. Juvenile 1 was caution interviewed on 18th October, 2020 at Lautoka Police Station. Juvenile 1 admitted he committed the offences of aggravated burglary and theft with another in his answers from question 28 to question 41 of his caution interview. (Attached and marked as tab A is the English version of his caution interview).

4.	Juvenile 2 was cautioned interviewed on 17th October 2020 at Lautoka Police Station. Juvenile 2 admitted he committed the offences of aggravated burglary and theft with another in his answers from question 40 to question 61 of his caution interview. (Attached and marked as tab B is the English version of his caution interview).

5.	The juveniles admitted that they had consumed the stolen items. Thus they had permanently deprived the complainant of his properties.

6.	The total value of items stolen by the juveniles are $530.00. There were no recoveries of the stolen items.

7.	In committing the offences, the juveniles had jointly planned it and carried out.

     HAC 171 of 2020

There are two Juveniles in this case.
The 1st Juvenile’s (AL) highest education level is up to form 3 at Andra Secondary School and the 2nd Juvenile’s (TT) highest education level is up to class 7 at Delana Primary School.
The complainant in this case is Anand Krishna, 62 years, Pastor of Lot 84 – 85 Tivi place, Banaras, Lautoka. The complainant has been residing at the above-mentioned address since birth. The complainant has been residing with his 4 children. He is a church pastor at Agape Revival Centre.
On the 2nd day of October, 2020 at Lot 84 – 85, Tivi place, Lautoka, one A.L, (1st Juvenile) together with T.T (2nd Juvenile) broke into the house of Anand Krishna and stole the following items:
a.	1 x Panasonic 32 inch Flat Screen Television valued at $700.00;
b.	1 x Lenovo Laptop valued at $1700.00;
c.	1 x Remington Hair straightener valued at $230.00 all to the total amount of $2,630.00 the said property of Anand Krishna.
On the said day, at about 9.45am the complainant together with his family had securely locked the house and had departed to attend to some personal matters in town. Upon returning home at around 12.15pm the complainant discovered that the house has been ransacked and the above items stolen. It was further discovered that the entry to the house was gained through removing two louver blades from the complainant’s daughter’s room.
Matter was reported to Police and investigation was conducted whereby A.L(1st Juvenile) and T.T (2nd Juvenile) were arrested.
Both Juveniles voluntarily participated in the Record of Interview and admitted to committing the offence. As for the 1st Juvenile, A.L’’s interview commenced 17th October, 2020 at about 11.44am and concluded at 6pm and for the 2nd Juvenile, T.T, the interview commenced at 11.49am on 18th of October 2020 and concluded at 4.10pm on the same dates.
As part of the reconstruction, A.L (1st Juvenile) voluntarily handed over the Lenovo Laptop (this is reflected in Q & A 64 of the RIC) to Police.
The complainant has positively identified the Lenovo Laptop as the same item that was stolen from his house on the 2nd of October, 2020.
The admission in the Record of Interview for the 1st Juvenile, A.L are as follows:
1.	Q & A 34 to 53
The admission in the Record of Interview for the 2nd Juvenile, T.T are as follows:
1.	Q & A 41 to 57
The item recovered is yet to be returned to the complainant.

HAC 172 of 2020

Incident

1.	Between 11th September 2020 and 12th September 2020, the juveniles broke into the house of Malcom Pecham (the complainant) stealing the following:

i.	1 x Samsung A58 mobile phone;
ii.	1 x Black Bose speaker;
iii.	1 x Samsung tablet;
iv.	1 x Vodafone Wi-Fi device;
v.	$200 cash.
2.	The complainant was the owner of these properties.  The juveniles entered the house of the complainant by removing a wire screen from one of the bedroom windows and entering the house through that window.  The juveniles after entering the complainant’s house, stole the abovementioned items from one of the bedrooms.

3.	Information from the investigation led to the arrest of the juveniles.  Juvenile 1 was caution interviewed on 18th October 2020 at Lautoka Police Station. He was interviewed in the Itaukei language admitting he committed the offences of aggravated burglary and theft with another in his answers from Question 36 to Question 46 of his caution interview.  (Attached and marked as Tab A is the Itaukei version of his caution interview).

4.	Juvenile 2 was caution interviewed on 17th October 2020 at Lautoka Police Station.  He was also interviewed in the Itaukei language admitting he committed the offences of aggravated burglary and theft with another in his answers from Question 34 to Question 51 of his caution interview.  (Attached and marked as Tab B is the Itaukei version of his caution interview).

5.	The juveniles admitted selling the stolen items.  Thus they had permanently deprived the complainant of his properties.

6.	The total value of items stolen by the juveniles are $2,600.00.  No recoveries of the stolen items were made during the investigation.

7.	In committing these offences, the juveniles had jointly planned it and carried out.

3.	After considering the summary of facts read by the state counsel which was admitted by both the juveniles in their respective files and upon reading their caution interviews, this court is satisfied that the juveniles have entered an unequivocal plea of guilty on their freewill.

4.	This court is also satisfied that all the juveniles have fully understood the nature of the charges and the consequences of pleading guilty.  The summary of facts admitted satisfies all the elements of all the offences. All the juveniles also admitted committing the offences in the company of each other or with the accused in HAC 107 of 2020. In view of the above, this court finds all the juveniles guilty as charged.

5.	The learned counsel for the juveniles presented the following mitigation and personal details:

JUVENILE ONE – A.L

a)	The juvenile was 17 years at the time;
b)	First time in conflict with the law;
c)	Young offender, resides with his grandmother and other siblings; 
d)	Pleaded guilty at the earliest opportunity;
e)	Remorseful and apologies for his actions;
f)	Cooperated with police during investigations;
g)	Regrets what he has done;
h)	Seeks forgiveness from the court;
i)	Promises not to reoffend;
j)	Some stolen items have been recovered. 

  JUVENILE TWO – T.T 

a)	The juvenile was 17 years at the time;
b)	First time in conflict with the law;
c)	Young offender, resides with his mother and other siblings;  
d)	Pleaded guilty at the earliest opportunity;
e)	Remorseful and apologies for his actions;
f)	Cooperated with police during investigations;
g)	Seeks the forgiveness of the court;
h)	Promises not to reoffend;
i)	Some stolen items have been recovered.

TARIFF 
6.	For the offence of failure to comply with orders the maximum penalty is a fine not exceeding $10,000.00 or imprisonment term not exceeding 5 years or both fine and imprisonment. The current sentencing trend for this offence is a suspended sentence and a fine (see Viliame Raituku and others, criminal case no. HAC 158 of 2020 (23 February, 2021)

7.	The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.

8.	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).

9.	For the offence of theft the maximum penalty is 10 years imprisonment.

10.	The tariff for the offence of theft is settled. In Mikaele Ratusili v. State, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft as follows: 
“(i) 	For the first offence of simple theft the sentencing range should be between 2 and 9 months.
(ii) 	any subsequent 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 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.”
11.	The first juvenile A.L has been found guilty of attempted theft. In accordance with section 44 (1) of the Crimes Act a person convicted of attempt to commit an offence is punishable as if the offence attempted had been committed.
 12.	Both juveniles fall under special categorization than adults when it comes to punishment, under section 30 (3) of the Juveniles Act as young persons which prescribes the maximum punishment for young persons at 2 years imprisonment.

SOCIAL WELFARE REPORT

13.	As per the order of this court the Social Welfare Department was to have prepared a pre-punishment report. This report was not ready at the time of hearing since the juveniles are in remand having attained 18 years of age it was only prudent that the proceedings be finalized as soon as possible.   
PARENTAL VIEW/SUPPORT

14.	The aunt of the first juvenile (A.L) and the elder sister of the second juvenile were present in court.  The aunt and the elder sister of the juveniles take responsibility of what has happened, they are sorry for the actions of their nephew and brother. They are going to make sure both juveniles are properly supervised and they do not repeat what has happened.

15.	The juveniles also expressed remorse in court and were genuinely apologetic for what they had done. I am sure this experience was an eye opener for them. The juveniles apologized to their elders in court and have made a promise not to be in conflict with the law again. 

  DETERMINATION 

16.     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.”

17.	Taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate punishment for all the offences and both juveniles.

18.	Considering the objective seriousness of the offences committed I select 18 months imprisonment (lower range of the tariff) as the aggregate punishment of all the offences. The punishment is increased for the aggravating factors and a reduction allowed for the early guilty plea, mitigation, and police custody/detention/remand.

19.	The final aggregate punishment for the all offences is 2 years imprisonment. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspend the final punishment since it does not exceed 3 years imprisonment. 

20.	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 paragraph 23:
“[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."

21.	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 punishment. The juveniles are young persons as per the Juveniles Act, they are of good character, isolated offences were committed by them, they were 17 years of age at the time of the offending, pleaded guilty at the earliest opportunity, are genuinely remorseful, cooperated with police and they take full responsibility of their actions. These special reasons render immediate imprisonment term inappropriate. 

22.	I am sure both the juveniles with family guidance, supervision and support have a bright future ahead of them hence an imprisonment term will not augur well for their future, the juveniles have been in police custody/detention/remand which is in itself an adequate and appropriate punishment, an experience that will remind them to keep away from conflict with the law. This court has taken into account rehabilitation over and above deterrence.

23.	Having considered section 4 (1) of the Sentencing and Penalties Act this court is of the view that this punishment is just in all the circumstances of the case.
24.	Let me remind the juveniles that leading a life within the boundaries of criminal activities do not assist it only takes a person deeper and deeper into a world of uncertainty and misery. The society does not condone such activities and this court also denounces such behaviour. In this proceedings juvenile one has four files, juvenile two has three files which is a matter of concern. 

25.	This is an opportunity for the juveniles to stop entering the world of uncertainty and lead a happy life with their parents, family members and siblings.  The only reason why the punishment is lenient because the Juveniles Act imposes a limit on the punishment of young persons.

26.	In summary the juveniles are given a punishment of 2 years imprisonment as an aggregate punishment respectively for all the offences which is suspended for 5 years. The effect of suspended sentence is explained. The following orders are to take effect immediately. It is also noted that the first juvenile A.L has been found guilty of failure to comply with orders which also carries a fine with the suspended sentence.  

ORDERS

a)	The juveniles are given a punishment of 2 years imprisonment as an aggregate punishment for the respective counts mentioned in each file which is suspended for 5 years with immediate effect;

b)	The aunt,  elder sister,  parents or the guardian or the next of kin of the juveniles are to sign a good behaviour bond on behalf of each juvenile in the sum of $500.00;

c)	The aunt, elder sister, parents or the guardian or the next of kin of the juveniles are to pay the sum of $300.00 for each Juvenile as compensation to the victims whose properties were stolen. The compensation will be divided equally between the victims in all the files except HAC 107 of 2020 where nothing was stolen;

d)	The aunt of juvenile one A.L, parents or the guardian or the next of kin of this juvenile is also to pay the sum of $30.00 as fine for the offence of failure to comply with orders.  

e)	 The compensation and fine are to be paid within 21 days from today. 

f)	30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

At Lautoka
4th April, 2022

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