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State v Kotobalavu - Sentence [2021] FJHC 153; HAC341.2020 (10 March 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 341 of 2020

[CRIMINAL JURISDICTION]

STATE

V

1. SOKO KOTOBALAVU
2. ATUNAISA VAKATALESAU BOKADI
   

Counsel : Ms. B. Kantharia for the State
Mr. K. Niubalavu for the 1^st Accused
Ms. S. Hazelman for the 2^nd Accused

Date of Sentence : 10 March, 2021

SENTENCE

1. Soko Kotobalavu and Atunaisa Vakatalesau Bokadi you have pleaded guilty to the charges produced below and were convicted as charged accordingly on 18/02/21;
   

FIRST COUNT

Statement of Offence

Aggravated Burglary: Contrary Section 313 (1) (a) of the Crimes Act 2009.

Particulars of Offence (a)

SOKO KOTOBALAVU and ATUNAISA VAKATALESAU BOKADI, on the 24^th day of November, 2020 at Lami, in Central Division, entered into the property of BERNARD SAMSON KADO as trespassers, with the intention to commit theft therein.

SECOND COUNT

Statement of Offence

Theft: Contrary Section 291 (1) of the Crimes Act 2009.

Particulars of Offence (b)

SOKO KOTOBALAVU and ATUNAISA VAKATALESAU BOKADI, on the 24^th day of November, 2020 at Lami, in Central Division, in the company of each other, dishonestly appropriated 1 x Maxton washing machine, the property of BERNARD SAMSON KADO with the intention of permanently depriving BERNARD SAMSON KADO of his properties.

2. You have admitted the following summary of facts;
   1. The accused’s are:-
      • (a) Soko Kotobalvu – (hereinafter known as A1), 25 years old [21/12/95] of Bonatoa Settlement, Delainavesi, Chef;
      • (b) Atunaisa Vakatalesau Bokadi (hereinafter known as A2), 21 years old [01/01/99] of Delainavesi Road, Processor at Food Pacific Ltd.
        
   2. The complainant in this matter is Bernard Samson Kado (hereinafter known as PW1) 56 years old, of Bonatoa Settlement, retired.
      
   3. Relationship between the complainant and accuseds; PW1 is A1’s uncle. Nil relationship with A2.
      

Brief Facts of the Matter

4. On 23/11/2020 at about 11am – PW1 of Bonatoa settlement, Delainavesi left home for Yasi Road.
5. PW1 locked his house doors and informed the neighbor that he was going to Yasi Road as the neighbor also used PW1’s washing machine to dry their clothes.
6. PW1 returned on 24/11/20 when his neighbor told him that his machine was stolen.
7. PW1’s neighbor told him that she went to use the washing machine and found that it was missing from inside the kitchen where it is kept.
8. PW1 then went to confirm what the neighbor told him and found that the washing machine was indeed missing from the place where it was kept in the kitchen. PW1 found that someone had stolen his washing machine from the kitchen. PW1 said that someone could have entered from the front door because before he left on 23/11/2020, he just closed the front door and never locked it.
9. PW1 stated that his machine washing was of the brand ‘Maxton’ – white in colour and that he had brought same from Brij Lal for $429.00.
10. PW1 reported the matter to the police for them to investigate.
11. On the same day of the alleged incident – 24/11/20, Tarusila Talei Seru – (hereinafter known as PW2), 18 years old of Bonanatoa settlement, student was awoken at about 2.30am by some people talking outside their house which is beside the roadside close to Ravitalei grog canteen.
12. PW2 saw across the road at PW1’s home and saw A1 and A2 carrying a white washing machine and at the same time they crossed the road and an I-Taukei man confronted the two and they started fighting with this I-Taukei man and some boys came and stopped the fight.
13. The two then left leaving the washing machine and some other boys came and took the machine washing.
14. PW2 knows A1 and A2 as A1 is his uncle and A2 is his cousin brother.
15. PW2 stated that when he was looking at A1 and A2 there was no obstruction of his view and that the street lights were bright therefore he saw both A1 and A2’s face clearly without any obstruction.
16. Police came for investigation and PW2 gave his statement of what he saw.
17. Sevanaia Draunivasa (hereinafter known as PW3) is 33 years, driver at FBC of Lot 12 Baka drive; he clearly recalls that on Tuesday 24/11/20 at around 2am he was waiting for his pick-up to go to work.
18. At around 2.30am, the pickup was still not there and he walked to the Delainavesi junction to wait there for his pickup.
19. Whilst walking down Delainavesi road past the Bens school he saw 2 I-Taukei boys opposite the Ravitalei grog shop carrying a white washing machine.
20. PW3 confronted them and asked them whose washing machine it was and that it was still curfew hours on which the 2 got angry and wanted to fight. Thereafter they then exchanged fist fight with PW3 when the occupants of the nearby houses woke up and they stopped the fight. PW3 then went to the Delainavesi police post to report what had happened.
21. PW3 knows the house of the 2 I-Taukei’s as they play volleyball together. PW3 asked the neighbours around and they told him that their name was Atunaisa and Soko which information he gave to police.
22. Veniana Duwai, 40 years old (hereinafter known as PW4) of the same settlement was awoken by the police at around 3am to question whether she saw anything and she told the police – no.
23. In the morning when PW4’s daughter woke up she told PW4 that she saw someone carrying the washing machine following the footpath beside the Ravitalei grog shop but she does not know them.
24. PW4 did not know that the same washing machine in question belonged to their neighbor – PW1 till she went to use the same in the morning and found out that the back door was closed but not locked.
25. Aminiasi Ratuloloa – (hereinafter known as PW5), 59 years old of Delainavesi has been residing at the settlement for 30 years with his family.
26. PW5 on 24/11/20 at about 3am heard brawl at the roadside near the Ravitaki shops so they ran to see who was fighting during the curfew hours.
27. PW5 upon reaching the place where the fight was happening tried to stop same but was unable to do so and then other neighbours came to help stop same.
28. When PW5 turned around to go back home then he saw the washing machine beside the Ravitaki shop so he lifted up and took it home. Before he took same, A1 and A2 approached him and told him that the washing machine belonged to them. PW5 told them that they did not have any washing machine and lifted same and continued to carry same home.
29. PW5 stated that he knew that the washing machine was stolen from the neighborhood and he kept the same telling his neighbours that if someone came looking for it to pick from his house.
30. PW5 was approached by PW1 in the afternoon and he told him that his washing machine was stolen. PW1 identified the machine as belonging to him.
31. Nacanieli Lomiani – Police Officer at the Lami Police Station (hereinafter known as PW6) was on duty on 25/11/20 when he attended the report together with other officers to arrest the suspect – A2 from Delainavesi. He arrested A2 at 10.32am and he told him that A1 was the second suspect who was with him on the day of alleged incident.
32. The police then proceeded to Super Fresh and arrested A1 at about 10.50am and then escorted both of them to the Lami Police Station.
33. PC 5107 – Benidito – caution interviewed A1 and he admitted to committing the offence.
34. DC 5130 Apenisa K – caution interviewed A2 who also admitted to committing the offence
35. PC 5107 – Benidito then charged A2 and DC 4281 Joji D – charged A1 for the offence of A/Burglary and Theft.
    

Caution Interview Statement of A1

36. A1 stated that on the day of the alleged incident 24/11/20 at around 1 am he was at home drinking and then he came out looking for roll and met Atu – A2 on the road and then they both went to his house and continued drinking – Q & A – 12 to 16 of the ROI.
37. A1 then told A2 to go to the driveway and drink there as his family was sleeping Q & A – 17 of the ROI.
38. They thereafter wanted to light cigarette but there was no lighter so he went to his uncle Sam’s house and knocked on the door but there was no response so he pushed the door and it opened so he went in and saw the washing machine by the door. He took the washing machine out of the house and showed it to A2 and both took it to the road across to Ravitaki’s grog shop Q & A – 18 of the ROI.
39. They met an I-Taukei man who was coming down the road and had stopped them. The man asked them where they were taking the washing machine and then they started arguing with each other and then the I-Taukei man wanted to fight so A1 went first at him but A1 fell from a punch the I-Taukei man gave him. He later picked the pallet that was there to cover himself. I-Taukei man than fought with A2 – Q & A – 20 of the ROI.
40. Everyone from the neighbourhood then gathered to see what happened and A1 was shocked to see his family there Q & A – 21 of the ROI.
41. A1 stated they left the washing machine on the ground close by. Q & A – 22 of the ROI.
42. A1 said that later when he was sober, he could not believe that he had taken the washing machine from his uncles house and he thinks that because he was drunk, he did same Q & A – 23 of the ROI.
    

Caution Interview Statement of A2

43. On 23/11/2020, A2 was at the Friend’s night club with his friends where he had initially gone to eat and later started drinking with his friends Q & A – 20 to 22 of the ROI.
44. He stated that he was there till 9pm, the time when the club closes and then he got into a taxi and went home Q & A – 27 & 28 of the ROI.
45. He said that he got off the taxi and went to the Bonatoa Bus stop and sat down there and later walked to Ravitaki’s canteen to buy some food Q & A – 29 & 30 of the ROI.
46. Upon reaching the canteen, he saw his auntie drinking grog and other drinking liquor so he decided to join the one’s drinking liquor Q & A – 31 & 32 of the ROI.
47. He stated that he was drinking with A1 and some girls he does not know and later the aunty said they wanted to sleep and for them to go and finish the drinks outside so he took the four bottles outside with A1 and sat to finish it at the driveway beside the road Q & A – 35 to 37 of the ROI.
48. After finishing the 4 bottles – A1 walked to the uncle’s house – just beside where they were drinking to look for matches and he pushed the back door and it opened and he went inside Q & A – 38 to 40 of the ROI.
49. When A1 came out he was carrying a washing machine and A2 helped A1 carry the washing machine Q & A – 41 & 42 of the ROI.
50. A2 stated that they both were drunk and they took the washing machine for no reason and they took it across the road when confronted by an I-Taukei man who questioned them about the washing machine and told them that he was a police officer Q & A – 43 to 46 of the ROI.
51. According to A2, the I-Taukei man than punched A1 and he knocked off and he then challenged him and they fought when the neighbours came and stopped them Q & A – 47 & 48 of the ROI.
52. The washing machine was left on side of the road and A2 went to his house to sleep and he stated that he was not aware of the time, when told that it was curfew hours when the alleged incident happened Q & A – 49 & 52 of the ROI.
53. In regards to the allegations, A2 stated that he only helped A1 carry the washing machine Q & A – 53 of the ROI.
54. Both the accused’s are charged and have pleaded guilty to one count of Aggravated Burglary contrary to section 313 (1) (a) of the Crimes Act, 2009 and second count of Theft contrary to section 291 (1) of the Crimes Act, 2009.
55. Annexed herewith are copy of the record of Interviews and copy of previous conviction of A1 and A2 from the Criminal Records Office marked ‘A’ and “B” respectively.
    
3. The tariff for the offence of aggravated burglary which carries a maximum penalty of 17 years imprisonment should be an imprisonment term within the range of 6 years to 14 years. [Vide State v Prasad [2017] FJHC 761; HAC254.2016 (12 October 2017), State v Naulu [2018] FJHC 548 (25 June 2018) and State v Nanovu [2020] FJHC 985; HAC121.2020 (25 November 2020)]
   
4. However, the prosecutor has insisted that the sentencing tariff that should be applied in this case should be a range between 18 months to 03 years imprisonment.
   
5. I am conscious of the fact that sentencing is a matter for the court and not for the prosecution. Nevertheless, this submission made by the prosecution in relation to the sentencing range serves as a plea to be lenient in sentencing the accused. Taking everything into consideration, especially the fact that this assertion in fact works in favour of the accused, I have decided to regard the said assertion as a concession made by the prosecution in this case. I am mindful of the fact that this sentencing range advocated by the prosecutor does not facilitate the achieving of the purposes of sentencing stipulated under sections 4(1)(a), 4(1)(b), 4(1)(c) and 4(1)(e) of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”). Applying the said sentencing range also requires the maximum penalty prescribed by the Crimes Act for the offence to be overlooked when sentencing the accused.
   
6. The offence of theft contrary to section 291 of the Crimes Act carries a maximum sentence of 10 years. In the case of Waqa v State [HAA 17 of 2015], this court held that the tariff for the offence of theft should be 4 months to 3 years imprisonment.
   
7. The two offences you are convicted of are founded on the same facts. Therefore, in view of the provisions of section 17 of the Sentencing and Penalties Act, I consider it appropriate to impose an aggregate sentence of imprisonment against you for the two offences you have committed.
   
8. Soko Kotobalavu, you are 25 years old. It is submitted that you are a chef by profession.
   
9. Atunaisa Vakatalesau Bokadi, you are 22 years old and single. It is submitted that you were employed as a ‘Factory Hand’ prior to your arrest for this matter.
   
10. The value of the property that was stolen as revealed in the summary of facts is about $429. I find it appropriate to consider the said value of the item as a common aggravating factor. I am mindful of the fact that the stolen item was recovered.
    
11. In addition to the fact that the two of you have entered an early guilty plea, I would consider the following as your mitigating factors;
    1. You are first offenders;
    2. There is full recovery;
    100. You are remorseful; and
    4. You have cooperated with the police.
       
12. I would select 18 months as the starting point of the aggregate sentence to be imposed on each one of you. I would add 03 months in view of the value of the stolen item.
13. I would deduct 01 year from the sentence in view of the above mitigating factors. Now the sentence is 09 months imprisonment. In view of your early guilty plea, I would grant each one of you, a discount of one-third. Accordingly, the final sentence is a term of 06 months imprisonment (after deducting 03 months).
    
14. It is pertinent to note that, logically, the final sentence should fall below the lower end of the relevant sentencing range when the mitigating factors outweighs the aggravating factors in a particular offending as in this case.
    
15. Conversely, in view of the fact that aggravated burglary is a prevalent offence if not the most prevalent offence in Fiji and the apprehension of fear this offence has instilled in the minds of the members of the public, on the face of it, a term of 06 months imprisonment does not reflect the denunciation this offending deserves and would not serve as a deterrent to those who with similar impulses to commit this prevalent offence. However, this is the outcome of granting the concession as pleaded by the prosecution.
    
16. In the circumstances, I hereby sentence each one of you to a term of 06 months imprisonment.
    
17. Each one of you have spent a period 03 months and 17 days in custody in relation to this matter. The time you have spent in custody shall be regarded as a period of imprisonment already served by you in terms of section 24 of the Sentencing and Penalties Act.
    
18. In the result, you are sentenced to an imprisonment term of 06 months. In view of the time spent in custody, time remaining to be served is 02 months and 13 days.
    
19. Considering the fact that you are first offenders, the fact that the stolen item was recovered and the relatively short final sentence, it is appropriate that the remaining term of your sentences are suspended. Accordingly, the remaining term of the sentence imposed on each one of you shall be suspended for a period of 02 years.
    
20. The court clerk will explain you the effects of a suspended sentence.
    
21. Accordingly, you will be released today. You are thoroughly warned and advised to hereafter abide by the laws of this country and to lead a good life.
    
22. Thirty (30) days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State

Oceanica IP for the 1^st Accused
Legal Aid Commission for the second Accused