State v Tokabe - Sentence [2024] FJHC 156; HAC93.2022 (8 March 2024)

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Counsel: Mr. Muhammed Rafiq for the State
Ms. Payal Reddy for the 1^st and 2^nd Accused

Sentence Hearing: 21 February 2024
Sentence: 8 March 2024

[1] Rupeni Tokabe and Peni Veidreyaki, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged with the following offences:

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

RUPENI TOKABE & PENI VEIDREYAKI, in the company of each other, on the 03^rd day of June 2022, at Lautoka, in the Western Division, entered into the office of FIJI DEVELOPMENT BANK, as trespassers, with intent to commit theft therein.

RUPENI TOKABE & PENI VEIDREYAKI, in the company of each other, on the 03^rd day of June 2022, at Lautoka, in the Western Division, dishonestly appropriated 1 x petty cash till and 1 x pair of yellow coloured hand gloves, the properties of FIJI DEVELOPMENT BANK, with intent to permanently deprive FIJI DEVELOPMENT BANK of its said properties.

BREACH OF BAIL CONDITION: Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act [2002 as Amended by Bail Amendment Act] 2012.

RUPENI TOKABE, on the 03^rd day of June 2022, at Lautoka, in the Western Division, breached a Bail Condition imposed by the Lautoka Magistrates’ Court, on the 08^th day of October 2018, vide Criminal Case No. 623/2018, by re-offending whilst being released on Bail.

BREACH OF BAIL CONDITION: Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act [2002 as Amended by Bail Amendment Act] 2012.

RUPENI TOKABE, on the 03^rd day of June 2022, at Lautoka, in the Western Division, breached a Bail Condition imposed by the Lautoka Magistrates’ Court, on the 18^th day of February 2022, vide Criminal Case No. 993/2021, by re-offending whilst being released on Bail.

BREACH OF BAIL CONDITION: Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act [2002 as Amended by Bail Amendment Act] 2012.

RUPENI TOKABE, on the 03^rd day of June 2022, at Lautoka, in the Western Division, breached a Bail Condition imposed by the Lautoka Magistrates’ Court, on the 23^rd day of May 2022, vide Criminal Case No. 353/2022, by re-offending whilst being released on Bail.

[2] The Information and Disclosures relevant to the case were filed by the DPP on 9 August 2022. Rupeni Tokabe and Peni Veidreyaki, on 25 August 2022, you were ready to take your pleas. On that day, Rupeni Tokabe, you pleaded not guilty to all six counts against you in the Information; whilst Peni Veidreyaki, you pleaded not guilty to the first two in the Information.

[3] However, on 23 October 2023, Rupeni Tokabe, you wished to take your plea once again. Accordingly, on that day, you pleaded guilty to the six counts against you in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charges against you and the consequences of your guilty pleas.

[4] Rupeni Tokabe, on the 10 November 2023, the State filed the Summary of Facts in respect of you. On the same day, the Summary of Facts were read out and explained to you and you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the respective counts in the Information, and found the six counts proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the six charges.

[5] On 30 November 2023, Peni Veidreyaki, you wished to take your plea once again. Accordingly, on that day, you pleaded guilty to the two counts against you in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charges against you and the consequences of your guilty pleas.

[6] Peni Veidreyaki, on the 7 December 2023, the State filed the Summary of Facts in respect of both you and Rupeni Tokabe. On the same day, the Summary of Facts were read out and explained to you and you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the respective counts in the Information, and found the first two counts proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the first two charges.

[7] Rupeni Tokabe and Peni Veidreyaki, I now proceed to pass sentence on you.

[8] As stated earlier, the State filed two sets of Summary of Facts in this case: one in respect of the 1^st Accused, Rupeni Tokabe, and another in respect of both 1^st and 2^nd Accused, Rupeni Tokabe and Peni Veidreyaki. Set out below is the Summary of Facts filed by the State in respect of both Rupeni Tokabe and Peni Veidreyaki:

“Charges: 1. One count of Aggravated Burglary contrary to Section 311 (1) (a) of the Crimes Act 2009;

1^st Accused: RUPENI TOKABE – [male - iTaukei] (DOB – 05^th February 1998) was 24 years old at the time of the offence – of Kaleli Settlement, Lautoka, and was Unemployed at the time of the offence.

2^nd Accused: PENI VEIDREYAKI – [male – iTaukei] (DOB – 10^th April 1999) was 23 years old at the time of the offence – of Waiyavi, Lautoka, and was Unemployed at the time of the offence.

Complainant: SURESH CHAND – [male – indo Fijian] who was 52 years old at the time of the offence – of 5 Adam Street, Lautoka, who is employed by the Corporate Victim as its Regional Manager.

Annexed herewith and marked with “Annexure A” are the Search Lists of items recovered from the Accused persons.

Annexed herewith and marked with “Annexure B” is the Accused’s Bail Undertaking Forms in all three of his Pending Cases.

Annexed herewith and marked with “Annexure C” is the Record of Interview of the Accused.”

[9] Rupeni Tokabe and Peni Veidreyaki, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[10] 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;

(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

[11] Furthermore, Section 4(2) of the Sentencing and Penalties Act provides that in sentencing offenders a Court must have regard to the following factors—

(b) current sentencing practice and the terms of any applicable guideline judgment;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

[12] Rupeni Tokabe and Peni Veidreyaki, I have duly considered the above factors in determining the sentences to be imposed on you.

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

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.

[14] The tariff that this Court had been consistently following, up to this point in time, for the offence of Aggravated Burglary, was between 18 months to 3 years imprisonment. Even the Court of Appeal in Leqavuni v. State [2016] FJCA 31; AAU 106.2014 (26 February 2016), observed that the tariff for Aggravated Burglary was between 18 months to 3 years.

[15] However, in the decision of (Avishkar Rohinesh) Kumar & Another v State [2022] FJCA 164; AAU117.2019 (24 November 2022), the Fiji Court of Appeal formulated a new tariff for the offences of Burglary and Aggravated Burglary. Resident Justice of Appeal, His Lordship Justice Chandana Prematilaka (with Justices Suhada Gamalath and Priyantha Nawana agreeing) held:

“[75] As the first step, the court should determine harm caused or intended by reference to the level of harm in the offending to decide whether it falls into High, Medium or Low category. The factors indicating higher and lower culpability along with aggravating and mitigating factors could be used in the matter of deciding the sentencing range. This would allow sentencers wider discretion and greater freedom to arrive at an appropriate sentence that fits the offending and the offender.

The Court should determine the offence category among 01-03 using inter alia the factors given in the table below:

Factors indicating greater harm

Theft of/damage to property causing a significant degree of loss to the victim (whether economic, commercial, sentimental or personal value)

Soiling, ransacking or vandalism of property

Restraint, detention or gratuitous degradation of the victim, which is greater than is necessary to succeed in the burglary. Occupier or victim at home or on the premises (or returns home) while offender present

Significant physical or psychological injury or other significant trauma to the victim beyond the normal inevitable consequence burglary.

Violence used or threatened against victim, particularly the deadly nature of the weapon

Context of general public disorder

Factors indicating lesser harm

Nothing stolen or only property of very low value to the victim (whether economic, sentimental or personal). No physical or psychological injury or other significant trauma to the victim

Limited damage or disturbance to property. No violence used or threatened and a weapon is not produced

[76] Once the level of harm has been identified, the Court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they plead guilty or not guilty and irrespective of previous convictions. A case of particular gravity, reflected by multiple features of harm, could merit upward adjustment from the starting point before further adjustment for level of culpability and aggravating or mitigating features.

LEVEL OF HARM (CATEGORY)	BURGLARY (OFFENDER ALONE AND WITHOUT A WEAPON)	AGGRAVATED BURGLARY (OFFENDER EITHER WITH ANOTHER OR WITH A WEAPON)	AGGRAVATED BURGLARY (OFFENDER WITH ANOTHER AND WITH A WEAPON)
HIGH	Starting Point: 05 years Sentencing Range: 03–08 years	Starting Point: 07 years Sentencing Range: 05–10 years	Starting Point: 09 years Sentencing Range: 08–12 years
MEDIUM	Starting Point: 03 years Sentencing Range: 01–05 years	Starting Point: 05 years Sentencing Range: 03–08 years	Starting Point: 07 years Sentencing Range: 05–10 years
LOW	Starting Point: 01 year Sentencing Range: 06 months – 03 years	Starting Point: 03 years Sentencing Range: 01–05 years	Starting Point: 05 years Sentencing Range: 03–08 years

[16] Considering all the facts and circumstances of this case, as is depicted in the Summary of Facts, it is my opinion that in this case the level of harm could be considered as low. Therefore, the appropriate tariff in this case should be in the range of 1 to 5 years imprisonment for the offence of Aggravated Burglary.

[17] 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.

[18] 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.

(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.”

[19] Considering all the facts and circumstances, it is my opinion that in this case the appropriate tariff should be in the range of 2 months to 3 years imprisonment for the offence of Theft.

[20] 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.”

[21] In Kumar & Another v State (supra), their Lordships held that once the level of harm has been identified, the Court should use the corresponding starting point in the given table to reach a sentence within the appropriate sentencing range (paragraph 76 of the Judgment). As could be observed, the starting points in the said table are all in the middle range of the sentencing tariff.

[22] However, I respectfully submit that this is not consistent with what has been stated in Laisiasa Koroivuki v State (supra), where it was held that as a matter of good practice, the starting point should be picked from the lower or middle range of the sentencing tariff.

[23] In the light of the above, Rupeni Tokabe and Peni Veidreyaki, I commence your sentences at 18 months imprisonment for the first count of Aggravated Burglary.

[24] Similarly, Rupeni Tokabe and Peni Veidreyaki, I commence your sentences at 6 months imprisonment for the second count of Theft.

[25] Rupeni Tokabe and Peni Veidreyaki, the aggravating factors in this case are as follows:

(ii) The two of you trespassed into the premises of a business/commercial establishment (in this instance a leading banking institution), in the early hours of the morning, thereby paying complete disregard to the property rights of the establishment.

(iii) I find that there was some degree of pre-planning or pre-meditation on your part in committing these offences, since you had trespassed into the said establishment in the early hours of the morning.

[26] Rupeni Tokabe and Peni Veidreyaki, in mitigation you have submitted as follows:

(i) 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.

(ii) You have submitted that you are truly remorseful of your actions. You have promised not to re-offend.

[27] Considering the aforementioned aggravating factors, Rupeni Tokabe and Peni Veidreyaki, I increase your sentences by a further 4 years. Now your sentences for count one would be 5 years and 6 months imprisonment. Your sentences for count two would be 4 years and 6 months imprisonment.

[28] Rupeni Tokabe and Peni Veidreyaki, you both have previous convictions. Therefore, you cannot be considered as persons with previous good character.

Peni Veidreyaki the previous convictions recorded against you are the following:

[29] Rupeni Tokabe and Peni Veidreyaki, I accept that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and the fact that you have promised not to re-offend. I also give credit to you since the stolen items were recovered. Accordingly, considering these mitigating factors, I deduct 1 year and 6 months from your sentences. Now your sentences for count one would be 4 years imprisonment. Your sentences for count two would be 3 years imprisonment.

[30] Rupeni Tokabe and Peni Veidreyaki, I accept that you both entered a guilty plea in these proceedings. However, the guilty plea was belated. You both pleaded guilty only after the matter was fixed for trial. Nevertheless, in doing so, you saved precious time and resources of this Court. For your guilty plea I grant you a further discount of 12 months. Now your sentences for count one would be 3 years imprisonment. Your sentences for count two would be 2 years imprisonment.

[31] Rupeni Tokabe, you stand convicted of 4 counts of Breach of Bail Conditions (Counts 3-6).

[32] In terms of Section 26 (1) of the Bail Act No. 26 of 2002, as amended by Bail (Amendment) Act No. 28 of 2012: “A person who has been released on bail and who fails without reasonable cause to surrender to custody, or otherwise without reasonable cause, breaches any condition of bail imposed by Court, commits an offence and is liable on conviction to a fine of $2,000 or 12 months imprisonment, or both."

[33] Rupeni Tokabe, considering the nature and gravity of the offending, your culpability and degree of responsibility for the offending, the aggravating factors and mitigating factors aforesaid, I impose on you a sentence of 6 months imprisonment for each of the counts of Breach of Bail Conditions.

Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-3 years imprisonment.

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

Count 3- Breach of Bail Condition, Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act 2002 as amended- 6 months imprisonment.

Count 4- Breach of Bail Condition, Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act 2002 as amended- 6 months imprisonment.

Count 5- Breach of Bail Condition, Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act 2002 as amended- 6 months imprisonment.

Count 6- Breach of Bail Condition, Contrary to Sections 25 (1) (b) and 26 (1) of the Bail Act 2002 as amended- 6 months imprisonment.

I order that all your sentences of imprisonment to run concurrently. Therefore, your final total term will be 3 years imprisonment.

Count 1- Aggravated Burglary contrary to Section 313 (1) (a) of the Crimes Act-3 years imprisonment.

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

I order that both sentences of imprisonment to run concurrently. Therefore, your final total term will be 3 years imprisonment.

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

(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,—

[38] Rupeni Tokabe, you are now 26 years of age [Your date of birth being 5 February 1998]. You are said to be in a de-facto relationship and have two children, aged 2 and 4 years old. You are said to be residing at Waiyavi with your de-facto partner and family. Prior to being remanded for this case, you had been employed as a Security Officer. It is submitted on your behalf that you have acquired a Certificate in Baking and that you wish to put it into good use once you are released from custody.

[39] You have submitted that you have committed this offence as a result of peer pressure. You state that you have become friends with the wrong group of people who had encouraged you to get involved in this kind of crime.

[40] Rupeni Tokabe, in addition to the five previous convictions listed above, there are two cases pending against you, which are the following:

[41] Rupeni Tokabe, considering the nature and gravity of the offending and your culpability and degree of responsibility for the offending in this case, and the previous convictions and pending cases against you, this Court is not in a position to suspend your sentence or even a part of the sentence that the Court is imposing in this case.

[42] Accordingly, I sentence you to a term of 3 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I fix your non-parole period as 2 years imprisonment.

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[44] You were arrested for this case and produced in the Magistrate’s Court of Lautoka on 4 June 2022 and remanded into custody. You have remained in custody for this case since that day. Therefore, you had been in remand custody for a period of 21 months. Although, the Magistrate’s Court of Lautoka, in Case No. CF 1326 of 2020, has considered part of this period in remand and granted you a concession when sentencing you in that case, the entire period you were in custody shall be regarded by me as period of imprisonment already served by you in this case. Accordingly, I hold that a period of 21 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

Considering the time you have spent in remand, the time remaining to be served is as follows:

[46] Peni Veidreyaki, you are 24 years of age [Your date of birth being 10 April 1999]. You are said to be single. You are said to be currently going through a rehabilitation process at Lololo, Drasa in Lautoka. You have submitted a certificate from Rev. Epi David Ligairi, Program Director, Teen Challenge Fiji Trust, Lautoka, in proof of same.

[47] You have submitted that you have committed this offence under the influence of alcohol and as a result of peer pressure. You state that you have become friends with the wrong group of people who had encouraged you to get involved in this kind of crime.

[48] 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.”

[49] 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.”

[50] Peni Veidreyaki, although you are not a first offender, you are a relatively young offender. You have fully cooperated with the Police in this matter and you have accepted responsibility for your conduct. You have submitted that you are truly remorseful of your actions and promised not to re-offend. You entered a guilty plea during these proceedings, although belatedly.

[51] For the aforesaid reasons, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentence.

[52] However, 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.

[53] In the result, Peni Veidreyaki, your final sentence of 3 years imprisonment, is suspended for a period of 7 years. You are advised of the effect of breaching a suspended sentence.

[54] Rupeni Tokabe and Peni Veidreyaki, you have 30 days to appeal to the Court of Appeal if you so wish.

Solicitors for the State: Office of the Director of Public Prosecutions, Lautoka.
Solicitors for the 1^st and 2^nd Accused: Office of the Legal Aid Commission, Lautoka.

High Court of Fiji

State v Tokabe - Sentence [2024] FJHC 156; HAC93.2022 (8 March 2024)