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State v Turaganivalu - Sentence [2022] FJHC 360; HAC284.2020 (19 May 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 284 of 2020

STATE

V

UATE TADULALA TURAGANIVALU

Appearances : Mr. Zunaid, Z. for the State
: Ms. Singh, M. and Mr. Patel, A. for the Accused

Date of Sentence : 19 May 2022

SENTENCE

1. The Accused has been convicted of a count of aggravated burglary and a count of theft following trial.
   
2. The facts at trial were that the Complainant had locked his house at Cunningham on 25 September 2020 and went to Nausori where he was staying at the time. Sometime around midnight, he received a telephone call from his neighbor at Cunningham to say that there was a burglary at his home. The neighbor was requested to get her brother to report the matter to the Police.
   
3. The Complainant arrived at his Cunningham home in the morning to find it had been broken into, and entry gained through the louvre blades removed from the rear of the house. Missing from the house was a 36 inch television set and a DVD player, assorted jewellery, bed sheets and blanket, all with a total value of more than $800.
   
4. Police officers who attended the scene a short while after the report saw the Accused and three other youths jump over a fence and run into a settlement. A pursuit immediately followed. They lost three of the youths and continued the chase after the Accused. They lost sight of him briefly as he rounded the corner of a house but neighbors pointed to the
   

bottom of a house where they found the Accused lying on a bed, sweating and out of breath. There was a mud on his feet.

5. He was arrested and taken to the Police Station where a ladies’ wrist watch was found in his shorts pocket.
   
   6. The watch was identified by the Complainant in the morning when he went to the Police Station after checking on his house and finding it ransacked. The Complainant had not included the watch in the list of stolen items he had given to the Police, but when shown the watch taken from the Accused’s pocket, identified it as having belonged to his late wife and which had been kept in a drawer at their home.
      
   7. I accepted the watch had belonged to the Complainant’s wife.
      
   8. I rejected the Accused person’s defence that he had not been amongst the youth chased by the Police officers in the early hours of 26 September 2020 and rejected as untrue his explanation that the wrist watch found in his pocket by the Police had been given to him by someone at the bus stand in exchange for 2 rolls of cigarette two days prior to his arrest.
      
   9. There being no reasonable explanation for the Accused having in his possession the recently stolen wrist watch from the Complainant’s home, I found him guilty and convicted him of aggravated burglary and theft.
      
   10. An objective assessment of the seriousness of this offending is taken bearing in mind the maximum penalties and the tariffs for the offences the Accused stands charged with.
       
   11. Aggravated burglary is a serious offence. The maximum sentence is 17 years imprisonment. The tariff is 18 months – 3 years imprisonment.
       
   12. The maximum penalty for theft is 10 years imprisonment. The tariff for a first theft offending which this is, is 2-9 months imprisonment. (Ratusili v State Criminal Appeal No. HAA 011 of 2012, decision of 1 August 2012)
       
   13. The offending was at a dwelling house while its owner was away. Windows were removed to gain entry. A number of items of some significant value were stolen. This is a serious offending.
       
   14. I bear in mind the provisions of ss.4 (1) and (2) and s.15 of the Sentencing and Penalties Act.
       
   15. Both offences in this case are founded on the same facts. It is appropriate in the circumstances of this case to impose an aggregate sentence in respect of these offences.
       

Mitigating factors

16. The Accused was educated up to Form 5 and was 21 years old at the time of this offending. Prior to this conviction, he had a clean criminal record. He is therefore a young, first time offender.
    

Aggravating factors

17. There are no aggravating features of this offending. Apart from the fact of the removal of louvre blades to gain entry, there is no evidence of damage to the property or that the louvre blades were missing.
    
18. The non-recovery of stolen items is not an aggravating feature. In Niudamu v State Criminal Appeal No. HAA 028 of 2011, Madigan J stated:
    

Lack of recovery of property and no attempt to compensate are contingencies that can only arise after the offence and therefore are irrelevant to the actual offending. The only weight they might carry is on mitigation. Obviously in all cases of burglary or robbery, there is blatant disregard shown to other peoples’ property and to their right to quite enjoyment. To penalize the accused additionally in that respect is most unfair.

19. Any planning that may have been involved must be treated as being inherent in a charge of aggravated burglary where the aggravation is the commission of the offence with and in the company of another or others. (Niudamu, supra)
    
20. Having considered all of the above, I sentence the Accused to an aggregate term of 20 months imprisonment. He has spent 3 months in remand, which period is counted as part of sentence served, leaving now a balance of 17 months imprisonment.
    
21. Section 26 of the Sentencing and Penalties Act grants the Court power to suspend the whole or part of the sentence where it is appropriate to do so.
    
22. Burglary and theft are serious offences. They are prevalent and instill fear and terror in those affected and in the community. Those convicted of these offences ought to know the serious effects of their offending on innocent members of the community.
    
23. Though young and of a previous good character, I consider a custodial sentence is inevitable. The principles of general and specific deterrence are relevant. There is, however, scope also for rehabilitation for a young, first time offender.
    
24. Accordingly, the sentence of 17 months imprisonment is partially suspended, with 7 months to be served immediately in custody, and the remaining 10 months to be suspended for a period of 3 years.
    
25. The effect of a suspended sentence is that if, during the operational period of the suspended sentence of imprisonment the offender commits another offence punishable by imprisonment, he is liable to be charged and dealt with under section 28 of the Sentencing and Penalties Act.
    
26. The suspended sentence takes effect from the date the Accused is released from the Corrections Centre.
    
27. 30 days to appeal to the Court of Appeal.
    

Siainiu Bull
ACTING JUDGE

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