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State v Nadolo [2012] FJHC 1444; HAC143.10 (23 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 143 0F 2010

BETWEEN:

STATE
PROSECUTION

AND:

JOSEVA NADOLO
3RD ACCUSED

Counsel: MS. Selyn Kiran : Counsel for State
Accused in person

Date of Trial/Plea : 11 October 2012
Date of Sentencing and Mitigation Submissions : 02 November 2012
Date of Sentence : 23 November 2012

SENTENCE

1. Joseva Nadolo, the 3rd Accused in the above case (the accused), stood charged for committing the offences of 'Aggravated Burglary' and 'Theft' punishable under Sections 313 (1) (a) and 291 (1) respectively of the Crimes Decree No 44 of 2009 (the Decree). The accused pleaded guilty to the charges. Court, upon being satisfied that the plea was voluntary and free from duress or any influence, proceeded to convict the accused on the plea of guilt.
   
2. The offence of 'Aggravated Burglary', which is indictable, attracts a punishment of 17 year-term of imprisonment, while the summarily triable offence of 'Theft' mandates a punishment upto a 10 year-term of imprisonment under the Decree.
   
3. The tariff for the offence of 'Burglary', as founded on the basis of the provisions of the old Penal Code, was 18 months to 3 years in imprisonment (State v Mikaele Buliruarua) [2010] FJHC 384; (Tomasi Turuturuvesi v State) [2002] HAA 086/02. The tariff set for the offences involving burglary and larceny under the Penal Code was 1-4 years in imprisonment (Cavuilagi v State [2004] FJHC 92).
   
4. In Buliruarua's case (supra), the tariff set for the offence of 'Burglary' under the Penal Code, was made applicable in relation to the offence of 'Burglary' under the Decree.
   
5. I would accordingly adopt the same tariffs for the offences of 'Burglary' and of 'Theft' under the Decree in this case.
   
6. Facts, as admitted by the accused, revealed that he (the accused) along with two others intruded into a pharmacy at Vitogo Parade in Lautoka after breaking the glass-doors with the throw of a brick. As the pharmacy remained unoccupied at the time of the incident around 11.30 in the night of 23.10.2010, the accused along with his companions stole $ 3298 in cash, assorted body-spray and other cosmetics to the value of $ 4041. The three of them had then fled in a van and bought beer to satisfy their drinking quench.
   
7. The act of burglary in this case has crystallized into its aggravated form in view of the fact that the offence was committed by the accused whilst being a member of a gang. There exists no evidence on the use of excessive force or deadly weapons or injury to any person. I, therefore, find no material to constitute any aggravating circumstance/s other than those that are embedded in the offence itself.
   
8. The accused is only 20 years of age and has had no criminal record or previous convictions prior to the commission of offence in this case.
   
9. The Case Record reveals that the accused had been on remand for nearly six weeks for this offence. He was, however, released on bail later on; but, committed to remand custody from 18 June 2012 to date as he had absconded court after the release.
   
10. The accused states that the offence was resulted due to peer pressure and pleads for forgiveness enabling him to get into the mainstream of the society again. Moreover, the accused repents over the crime committed and applies for forgiveness stating that he will not reoffend. He further states that he has now learnt to be a better person after attending lessons on spiritual counselling and rehabilitation.
    
11. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No 42 of 2009 (the Sentencing Decree) especially under Sections 4 and 15 in order to determine the appropriate sentence.
    
12. Section 4 of the Decree on 'Sentencing Guidelines', has been founded on the jurisprudential principle of 'balancing competing interests' of the offender, the victim and the society at large. (State v Tilalevu [2010] FJHC 258 HAC 81 of 2010; 20.07.2010).
    
13. It is, therefore, of paramount importance for any sentence to reflect court's bounden duty of protecting the community and its unhesitant approach of denouncing the commission of the offence within the prescribed parameters under the law. This can be manifested only by deterring the offenders and others who tempt to commit crime.
    
14. (a) In giving effect to the above legal provisions, I consider it just to order in respect of the offence of 'Aggravated Burglary' a term of imprisonment of 30 months subject to the following:
    
    • (i) Reduction of a period of 06 months for the guilty plea as it demonstrated a true gesture of repentance though the plea was not an early one; and,
      
    • (ii) Reduction of 6 months for the fact that the accused is a young first offender
      

I would accordingly sentence the accused to a term of 18 month- imprisonment for the offence of 'Aggravated Burglary'.

(b) As regards the offence of 'Theft', it would be just to order a term of imprisonment of 24 months subject to the following:

• (i) Reduction of a period of 4 months for the guilty plea as it demonstrated true repentance though not early; and,
  
• (ii) Reduction of 6 months for the fact that the accused is a young first offender; and,
  

I accordingly sentence the accused to a term of 14 month-imprisonment for the offence of 'Theft'.

15. The accused is not entitled to any reduction of the sentence by setting-off the six-week long detention on remand custody in view of his subsequent absconding after the release on bail.
    
16. The question that arises for consideration next is whether the sentences should be suspended.
    
17. I had the occasion of considering the propriety of imposing suspended sentences on first offenders, who also happen to be young, in the case of Tilalevu (supra). After a survey of authorities, I adopted the ruling in the case of State v Patrick Fong FJHC 722/2005, where it was held that:
    

'The appellant pleads that he is a young first offender and that his sentence should be suspended. He is wrong. This was violent offending. It will only be in rare and exceptional circumstances that the court may be required to consider a suspended term of imprisonment for violent offending. The public need for deterrence will often outweigh the personal needs of a young but violent first offender.'

18. In line with the above authority, I held in the case of Tilalevu (supra) that:
    

'... the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.'

19. In the circumstances, I am not inclined to suspend the sentences ordered in respect of the two charges totally. Instead, I am of the view that it would be expedient to award a partial suspension, as provided for under Section 26(1) of the Sentencing Decree, after taking into account that an opportunity for rehabilitation in the mainstream should be afforded to the accused who is in his youth.
    
20. I accordingly order that:
    

(i) A period of nine (09) months be suspended out of the term of 18 month-imprisonment in respect of the offence of 'Burglary under Section 313 (1) (a) of the Decree for ten (10) years. The remaining nine (09) month period of the term of imprisonment shall be operative and should run concurrent with the period of the sentence set-out below; and,

(ii) A period of seven (07) months be suspended out of the term of 14 month-imprisonment imposed in respect of the offence of 'Theft' under Section 291(1) of the Crimes Decree for ten (10) years. The remaining seven (07) month period of the term of imprisonment shall be operative and should run concurrent with the period of the sentence set-out above.

21. The purpose and the effect of the suspended terms are explained to the accused along with the consequences of their breach under Section 26 (3) of the Sentencing Decree. If an offence punishable with a term of imprisonment is committed, the two suspended terms shall begin to run consecutively making a total of 16 month-imprisonment in addition to the sentence that the accused may get for the subsequent offence. The accused is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended sentence is an offence itself against Section 28 of the Sentencing Decree for which he could be arraigned and punished by court.
    
22. The state has relied on a previous conviction under CRO F/117305 for escaping from lawful custody and also on four pending cases in Magistrate's Court/Lautoka for this court to consider in the matter of the sentence. The identity of the accused in relation to the alleged conviction is not established; and, the pending cases are in relation to the offences committed after the offence in this case. I am therefore not inclined to take those matters into consideration in the matter of the sentence.
    
23. The total term of operative imprisonment that the accused has mandatorily to serve is nine (09) months in imprisonment. The term is deemed to have begun from 11 October 2012, the date of the plea of guilty. The prison authorities are directed to facilitate the process of rehabilitation available for young offenders during the above term of imprisonment.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
23 November 2012