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State v T.V - Punishment [2024] FJHC 381; HAC194.2023 (24 June 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


Criminal Case No.: HAC 194 of 2023


STATE


V


T.V, S.R.R and L.Q [Juveniles]


Counsel : Mr. J. Nasa for the State.
: First Juvenile in person.
Mr. P. Chand for the Second and Third Juveniles.
Mr. N. N. Wara for and on behalf of the Social Welfare Department.

Date of Submissions : 19 June, 2024
Date of Punishment : 24 June, 2024


PUNISHMENT


(The names of the Juveniles are suppressed they will be referred to as “T.V”, “S.R.R” and “L.Q” respectively)


  1. The juveniles are charged by virtue of the following information filed by the Director of Public Prosecutions dated 7th May, 2024:

FIRST COUNT

Statement of offence

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

Particulars of Offence

T.V, S.R.R and L.Q, on the 20th day of November, 2023 at Matanagata, Vatukoula in the Western Division, entered into the premises of SHALEND RETAIL shop as trespassers, with the intent to commit theft.


SECOND COUNT

Statement of offence

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

Particulars of Offence

T.V, S.R.R and L.Q, on the 20th day of November, 2023 at Matanagata, Vatukoula in the Western Division, dishonestly appropriated (stole) I carton mother drink, 3 x BH10 gross and 2 x BH20 packets, 41 x gas lighters, Vodafone recharge of approximately $500.00, Digicel recharge of approximately $270 and $1400 cash, the property of SHALEND’S RETAIL, with the intention of permanently depriving SHALEND’S RETAIL of the said properties.


  1. On 10th May, 2024 the first juvenile in person and the second and third juveniles in the presence of their counsel pleaded guilty to both counts. Thereafter on 15th May, 2024 the juveniles admitted the summary of facts read and explained to them in their preferred language.
  2. The summary of facts was as follows:
    1. On 19th November, 2023 the complainant closed his brother in law’s shop at around 10.30 pm and went to sleep at around 11pm.
    2. The first juvenile went to the shop to buy ‘suki’, however, by then the shop was closed as such he sat beside the shop. Shortly after the second and the third juveniles joined the first juvenile, whilst sitting beside the shop the first juvenile planned to break into the shop with the other juveniles.
    1. The first juvenile brought a hammer from his home at around 2am the next morning. The first juvenile pulled out the timber (Masonite wall) near the main door by using his hammer creating an opening into the shop.
    1. Thereafter the first and second juveniles entered the shop whilst the third juvenile kept a watch outside the shop. The juveniles stole 1 carton of canned mother drink, 3 gross BH10, 2 packets BH20, 41 gas lighters, Vodafone and Digicel recharge of approximately $770 and $1400 cash from the shop. The juveniles then went near Nasivi River and shared the stolen items amongst themselves.
    2. The complainant woke up at around 4.30 am and this is when he realized that the Masonite wall was partially opened and removed. The juveniles were later arrested, caution interviewed and charged. All of the juveniles admitted committing the offences. Some cash, 11 cans of mother drink, few BH10 packets and gas lighters had been recovered from the juveniles upon search.
  3. After considering the summary of facts read by the state counsel which was admitted by all the juveniles and upon reading their caution interviews this court is satisfied that all 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 the offences committed. The juveniles admitted committing the offences in the company of each other.
  5. In view of the above, this court finds all the juveniles guilty as charged. Both counsel and the first juvenile filed punishment and mitigating submissions. Mr. Wara on behalf of the Social Welfare Department filed pre-punishment reports for the second and third juveniles for which this court is grateful.

Juvenile T.V


  1. The first juvenile presented the following mitigation and personal details:
    1. He was 17 years at the time of the offending;
    2. Early guilty plea;
    1. Admits that he was the mastermind behind the offending;
    1. Takes responsibility for his actions;
    2. Seeks forgiveness from the court and the complainant;
    3. Had cooperated with the police during the investigations;
    4. Recovery of stolen items.
  2. The learned counsel for the second and third juveniles presented the following mitigation and personal details:

Juvenile S.R.R


  1. The juvenile was 16 years of age at the time;
  2. Student of Pacific Polytech;
  1. Lives with his uncle and grandfather;
  1. Recovery of stolen items;
  2. First and young offender in conflict with the law;
  3. Co-operated with the police;
  4. Pleaded guilty at the earliest opportunity;
  5. Remorseful and apologizes for his actions;
  6. Seeks forgiveness of the court;
  7. Promises not to reoffend.

Juvenile L.Q


  1. The juvenile was 15 years of age at the time;
  2. First and young offender in conflict with the law;
  1. Resides with his father and three siblings ;
  1. Student at Pacific Polytech;
  2. Co-operated with the police;
  3. Recovery of stolen items;
  4. Pleaded guilty at the earliest opportunity;
  5. Remorseful and apologizes for his actions;
  6. Regrets what he has done;
  7. Promises not to reoffend.

TARIFF


  1. The maximum penalty for the offence of aggravated burglary is 17 years imprisonment. The Court of Appeal in Avishkar Rohinesh Kumar and Another vs. The State [2022] FJCA 164; AAU 117 of 2019 (24 November, 2022) has established a new tariff for the offence of aggravated burglary by dividing the harm caused or intended in three categories from paragraph 74 to 77 of its judgment as follows:

[74] In terms of section 125(1) of the Coroners and Justice Act 2009 (UK) every court must, in sentencing an offender, follow any sentencing guideline and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so. However, in Fiji section 4(2)(b) states that a sentencing court must have regard to inter alia any applicable guideline judgment. Therefore, the sentencing judges in Fiji are not compelled by law to follow sentencing guidelines but is obliged to have regard to them. Therefore, the sentencing judges in Fiji enjoy greater freedom and wider discretion in sentencing offenders after having regard to the guidelines.

[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.

Determining the offence category

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


[77] The following table contains a non-exhaustive list of higher and lower culpability factors relating to the offending. Any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.


Factors indicating higher culpability
Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation) or victim compelled to leave their home (in particular victims of domestic violence).
Child or the elderly, the sick or disabled at home (or return home) when offence committed
A significant degree of planning, or organization or execution. Offence committed at night.
Prolonged nature of the burglary. Repeated incursions. Offender taking a leading role.
Equipped for burglary (for example, implements carried and/or use of vehicle)
Member of a group or gang
Factors indicating lower culpability
Offence committed on impulse, with limited intrusion into property or little or no planning
Offender exploited by others or committed or participated in the offence reluctantly as a result of coercion or intimidation (not amounting to duress) or as a result of peer pressure
Mental disorder or learning disability, where linked to the commission of the offence


[78] The following table contains a non-exhaustive list of aggravating and mitigating factors relating to the offender. Any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.


Factors increasing seriousness
Factors reducing seriousness or reflecting personal mitigation
Statutory aggravating factors:
Genuine remorse displayed, for example the offender has made voluntary reparation to the victim
Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
Subordinate role in a group or gang
No previous convictions or no relevant/recent convictions.
Offence committed whilst on bail or parole.
Cooperation with the police or assistance to the prosecution
Other aggravating factors include:
Good character and/or exemplary conduct
Any steps taken to prevent the victim reporting the incident or obtaining assistance and/or from assisting or supporting the prosecution
Determination, and/or demonstration of steps taken to address addiction or offending behavior
Established evidence of community impact
Serious medical conditions requiring urgent, intensive or long-term treatment
Commission of offence whilst under the influence of alcohol or drugs
Age and/or lack of maturity where it affects the culpability and responsibility of the offender
Failure to comply with current court orders
Lapse of time since the offence where this is not the fault of the offender
Offence committed whilst on licence
Mental disorder or learning disability, where not linked to the commission of the offence
Offences Taken Into Consideration (TICs)
Any other relevant personal considerations such as the offender being sole or primary care giver for dependent relatives or has a learning disability or mental disorder which reduces the culpability

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


AGGRAVATING FACTORS


  1. The following aggravating factors are obvious:
    1. Property Invasion

The juveniles did not have any regard for the property rights of the owner. They were bold and undeterred in what they did in the company of each other.


  1. Prevalence of the offending

There has been an increase in such offending that business entities are targeted at odd hours.


  1. Planning

There is a degree of planning by the first juvenile which was acted upon by the other two juveniles, they knew what each had to do at the time of the offending.


  1. Furthermore, all the 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

  1. Since the first juvenile has attained 18 years there was no order made for a social welfare report to be prepared for him. However, for the second and third juveniles the Social Welfare Department has prepared a pre punishment report as per the order of this court.
  2. As per the order of this court the Social Welfare Department conducted face to face interviews before compiling a pre-punishment report for the second and third juveniles.

15. The Social Welfare Department recommends the following:


  1. The juveniles be given a second chance in life;
  2. Be allowed to continue their education, attend counseling services and be part of rehabilitation programs and supervision.

FAMILY SUPPORT


  1. The grandmother of the second juvenile and the sister of the third juvenile were present in court. They admitted that it was due to lack of proper parenting, the juveniles went on the wrong path. However, they are committed to assisting the juveniles as a family unit. The sister of the second juvenile did raise concerns about the behaviour of her younger brother who hangs around with the village boys. He does not listen to the grandfather or her. However, despite all this she is confident that her brother will improve. The grandmother of the third juvenile has seen positive changes in her grandson and she is confident that the juvenile will behave and be a good citizen of this country. The sister and grandmother of the juveniles assured the court that they will continue with their supervision, guidance and support of the juveniles.
  2. As part of their commitment the sister and the grandmother of the juveniles are happy to enter into a bond of $500.00 each and are willing to pay $100.00 each as compensation to the victim by 28th June, 2024.

DETERMINATION


18. 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.”


19. Taking into account section 17 of the Sentencing and Penalties Act I

prefer to impose an aggregate punishment for both counts.


  1. Considering the minimum value of the items stolen, recovery of the stolen items and minimum damages to the properties where the burglary took place the level of harm caused to the complainant will fall under low category of harm which has a sentencing range of 1 year to 5 years imprisonment.
  2. After taking into account the objective seriousness of the offences committed I select 1 year imprisonment (lower range of the tariff) as the aggregate punishment for both counts. The punishment is increased for the aggravating factors, but reduced for mitigation and early guilty plea. The first juvenile has been in remand/detention for 1 month and 28 days, the second juvenile for 3 months and 1 day and the third juvenile for 14 days respectively. The punishment is accordingly reduced as a period of punishment already served.
  3. The final aggregate punishment for both counts for all the juveniles is 1 year and 10 months 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.
  4. 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."


  1. 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.


  1. The juveniles are young persons as per the Juveniles Act (15 to 17 years of age at the time of the offending), are of good character, isolated offences were committed by them, have pleaded guilty at the earliest opportunity, are remorseful, cooperated with police and they take full responsibility for their actions. These special reasons render an immediate imprisonment term inappropriate.
  2. 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 them. In view of the above, this court has taken into account rehabilitation over and above retribution. Section 30 (3) of the Juveniles Act also imposes a limit on the punishment of young persons for a maximum of two years imprisonment.

27. 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 this case.


  1. In summary all the juveniles are given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for both counts which is suspended for 3 years. The effect of the suspended sentence is explained to the juveniles. The following orders are to take effect immediately.
  2. The first juvenile is now an adult so there won’t be any ancillary orders made for him.

ORDERS


  1. All the juveniles are given a punishment of 1 year and 10 months imprisonment as an aggregate punishment for the two counts mentioned in the information which is suspended for 3 years with immediate effect;
  2. The sister of the second juvenile namely Akesa Rasobale is to sign a good behaviour bond on behalf of the juvenile in the sum of $500.00. Furthermore, the sister of this juvenile is to pay the victim compensation of $100.00 payable at the High Court Registry or any nearest Magistrate’s Court Registry by 28th June, 2024;
  1. The grandmother of the third juvenile namely Alena Tabusese is to sign a good behaviour bond on behalf of the juvenile in the sum of $500.00. Furthermore, the grandmother of this juvenile is to pay the victim compensation of $100.00 payable at the High Court Registry or any nearest Magistrate’s Court Registry by 28th June, 2024;
  1. The Social Welfare Department is to immediately arrange for the counseling of the second and third juveniles in the presence of their family members/ next of kin with the view to assist them in keeping out of peer group influence and to engage in education and training;
  2. The Social Welfare Department is also at liberty to work out any plans or programs that will be in the interest of both the juveniles;
  3. It is the responsibility of the sister/grandmother of the juveniles to ensure that the juveniles obey any directions given by the Social Welfare Department;
  4. The Social Welfare Department may provide any assistance and counseling to the family members of both the juveniles in improving their parenting skills towards the juveniles;
  5. A copy of this punishment is to be served on the Officer in Charge of the Department of Social Welfare.
  6. 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

At Lautoka
24 June, 2024


Solicitors
Office of the Director of Public Prosecutions for the State.
First Juvenile in person.
Office of the Legal Aid Commission for the second and third Juveniles.

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