State v Soqila - Sentence [2024] FJHC 301; HAC147.2019 (16 May 2024)

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Counsel: Mr. Simione Seruvatu for the State
Mr. Abishek Samy for the Accused

[1] Joseva Soqila, as per the Amended 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.

JOSEVA SOQILA AND OTHERS, on the 19^th day of August 2019, at Nadi, in the Western Division, broke into ALL AVAILABLE 24/7 MINIMART, as trespassers, with intent to commit theft.

JOSEVA SOQILA AND OTHERS, on the 19^th day of August 2019, at Nadi, in the Western Division, dishonestly appropriated (stole) Cash of $700.00, 1 x Jack Daniels, 2 x Red Label, 1 x BH10 gross and 1 x WiFi Router, all to an approximate total of $1455.00, the property of ALL AVAILABLE 24/7 MINIMART with the intention of permanently depriving TINA CHOWHURY of the said property.

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

JOSEVA SOQILA AND OTHERS, on the 19^th day of August 2019, at Nadi, in the Western Division, broke into SHOALIN TEMPLE TOURING COMPANY, as trespassers, with intent to commit theft.

JOSEVA SOQILA AND OTHERS, on the 19^th day of August 2019, at Nadi, in the Western Division, dishonestly appropriated (stole) 1 x Dell Laptop (silver) in a blue bag, 1 x Apple iPad and 1 x Lenovo Laptop (black), all to an approximate total of $7162.00, the property of SHOALIN TEMPLE TOURING COMPANY with the intention of permanently depriving SHOALIN TEMPLE TOURING COMPANY of the said property.

[2] This matter was first called before the High Court on 4 September 2019. The Disclosures relevant to the case was filed and served by the DPP on 23 October 2019, while the Information was filed in Court and served on you on 23 January 2020 and the matter was adjourned for plea.

[3] Joseva Soqila, on 6 February 2020, you were ready to take your plea. On that day, you pleaded not guilty to the four charges against you.

[4] After the conclusion of all pre-trial issues this matter was set for trial from 4-8 December 2023. However, on an application made by the State the said trial dates were vacated and the matter was re-fixed for trial from 11-15 March 2024.

[5] Accordingly, the trial in the matter was scheduled to commence on 11 March 2024. On 13 March 2024, your Learned Counsel informed that you are willing to take a progressive approach in respect of Counts 1 and 2.

[6] Accordingly, on 13 March 2024, you pleaded guilty to Counts 1 and 2 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 plea.

[7] On the same day, the Learned State Counsel made an oral application to enter a Nolle Prosequi in terms of Section 49 of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act), in respect of Counts 3 and 4. Accordingly, you were discharged in respect of the charges for which the Nolle Prosequi was entered (Counts 3 and 4).

[8] On 14 March 2024, it was detected that the Information filed needed slight amendment. As such, this Court permitted the amendment to be done in open Court. On the same day, you pleaded guilty to Counts 1 and 2 against you in the Amended 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 plea.

[9] On the same day, the State filed the Summary of Facts. 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 Amended Information, and found the 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 two charges.

Answer: We came through the fence which was already cut and came to the steps, climbed to the first floor and saw the security officer.

Answer: We came to another shop which is operated 24 hours and burst open the back door. After that we came into the shop and saw the lady sleeping near the counter and started picking the money and liquor which was on the shelf. Whilst we were looking for things, the lady woke up and then we told her that we will search for stuffs and go.

[12] Joseva Soqila, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[13] 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

[14] 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.

[15] Joseva Soqila, I have duly considered the above factors in determining the sentence to be imposed on you.

[16] 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.

[17] The tariff that this Court had been consistently following 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.

[18] 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

[19] Considering all the facts and circumstances of this case, as is depicted in the Summary of Facts, it is my opinion that the level of harm could be considered as medium. Therefore, the appropriate tariff in this case should be in the range of 3 to 8 years imprisonment for the offence of Aggravated Burglary.

[20] 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.

[21] 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.”

[22] Since the theft in this case involved property of a reasonably high value, this cannot be considered as theft simpliciter. Therefore, it is my opinion that in this case the appropriate tariff should be in the range of 6 months to 3 years imprisonment for the offence of Theft.

[23] 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.”

[24] 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.

[25] 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.

[26] In the light of the above, Joseva Soqila, I commence your sentence at 3 years imprisonment for the first count of Aggravated Burglary.

[27] Similarly, Joseva Soqila, I commence your sentence at 6 months imprisonment for the second count of Theft.

(ii) You and your accomplices had trespassed into the business/commercial establishment of the complainant in the early hours of the morning thereby paying complete disregard to the complainant’s privacy and property rights.

(iii) I find that there was some degree of pre-planning or pre-meditation on your part in committing these offences, along with your accomplices.

(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.

[30] Joseva Soqila, you are now 59 years of age [Your date of birth being 21 September 1964]. At the time of the offending you were 54 years old. You are said to be married with two children. You are residing at Madho Crescent, Razak Road, Lautoka. You are a Market Vendor by occupation earing approximately $80.00 per week, with which you are supporting your family. You are said to be the sole breadwinner of your family. Unfortunately, the above are all personal circumstances and cannot be considered as mitigating circumstances.

[31] You have submitted that at the time of the offending, you were in wrong company. You admit that you were pressured to commit the offence and only wish you could go back to right your wrongs. At the time of the offence, you were said to be desperate and committed the offence under the influence of peer pressure.

[32] You have submitted that due to your lack of awareness of the basic rules of law and good sense contributed to the offending. You have acknowledged that there was a lapse of sound judgment on your part and you now understand the repercussions of your actions. You have submitted that you are willing to make positive amends and address yourself to becoming a law abiding citizen.

[33] You have further submitted that for the last 3 to 4 years you have committed yourself to the spiritual development of your community. You are said to be holding a reputable position in your church. In support of this claim the Senior Pastor of the Apostle Gospel Outreach Fellowship International, Reverend Viliame Elia Ratucove has provided a character reference letter on your behalf. The Pastor outlines that you and your family have been showing great support towards church work, especially assisting in the mission work of converting people to Christianity. The Pastor has stated that you are now a changed man in the community following the principles of Christianity.

[34] However, Joseva Soqila, as per the Previous Convictions Report filed, it is noted that there are 40 previous convictions recorded against your name. You have admitted to the said previous convictions. These convictions range from 1981 to 2011. The last conviction (and sentence) dates back to 24 March 2011, where you had been sentenced by the Lautoka Magistrate’s Court (Case No. C.F. 182 of 2010), to 6 months imprisonment, which term was suspended for a period of 6 months, for the offence of Aggravated Burglary.

[35] In terms of Section 3 of the Rehabilitation of Offenders (Irrelevant Convictions) Act No. 11 of 1997 [Rehabilitation of Offenders (Irrelevant Convictions) Act], the term “irrelevant conviction” has been defined in the following manner:

(a) where there is no direct relationship between that conviction and the particular matter in respect of which it is sought to take that conviction into account; or

[36] Section 4 of the Act broadly defines what “direct relationship” means; while Section 5 of the Act defines the term “rehabilitation period” as follows:

5.-(1) Notwithstanding subsection (2), the rehabilitation period applicable to a conviction is:

(i) seven years, for a term of imprisonment or detention not exceeding two years under section 30 or 31 of the Juveniles Act; or

(ii) ten years, for a term of imprisonment or detention exceeding two years under section 31 of the Juveniles Act.

(2) Subject to subsection (1), the rehabilitation period applicable to Part III, is five years.

[37] Section 6(1) of the Rehabilitation of Offenders (Irrelevant Convictions) Act provides:

(b) where a custodial sentence was imposed, on the date: on which the convicted person was unconditionally released from imprisonment; or

(c) where the release of a convicted person from detention is subject to a condition or other penalty imposed by the Court, when the condition or that other penalty is fulfilled.

[38] In respect of your last conviction (and sentence), the operation period of 6 months of your suspended sentence would have been completed by 24 September 2011 (counting from 24 March 2011). Therefore, in terms of the Rehabilitation of Offenders (Irrelevant Convictions) Act, your rehabilitation period would have commenced on that day.

[39] You have committed the offences you have been convicted for in this case on 19 August 2019, which is clearly within the rehabilitation period of 10 years. Therefore, this Court cannot consider your previous conviction as being irrelevant. As a result, this Court cannot consider you as a person of recent good character or grant you any discount in lieu of this fact.

[40] Considering the aforementioned aggravating factors, Joseva Soqila, I increase your sentences by a further 3 years. Now your sentence for count one would be 6 years imprisonment. Your sentence for count two would be 3 years and 6 months imprisonment.

[41] Joseva Soqila, I accept that you have fully co-operated with the Police in this matter. Although you have several previous convictions recorded against you, I accept that your remorse maybe genuine. However, considering your numerous previous convictions, I cannot accept your promise not to re-offend. Accordingly, considering that you fully co-operated with the Police in this matter and your show of remorse, I deduct one year from your sentences. Now your sentence for count one would be 5 years imprisonment. Your sentence for count two would be 2 years and 6 months imprisonment.

[42] Joseva Soqila, you entered a guilty plea only when the trial in the matter was about to commence. Therefore, your guilty plea cannot be considered as an early guilty plea, but as a belated one. Nevertheless, in doing so you saved some of the resources of this Court, instead of proceeding with the matter for trial. For your guilty plea I grant you a further discount of two years for Count 1 and one year for Count 2. Now your sentence for count one would be 3 years imprisonment and your sentence for count two would be 1 year and 6 months 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 –1 year and 6 months imprisonment.

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

[44] The next issue for consideration is whether your sentence 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,—

[46] Joseva Soqila, 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 against your name, 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.

[47] 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.”

[49] You were arrested for this case and produced in the Nadi Magistrate’s Court on 21 August 2019 and remanded into custody. You were granted bail by the High Court on 24 June 2020. Accordingly, you have been in custody for a period of 10 months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 10 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:

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

High Court of Fiji

State v Soqila - Sentence [2024] FJHC 301; HAC147.2019 (16 May 2024)