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State v T.V - Punishment [2021] FJHC 406; HAC40.2021 (30 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.’s: HAC 40 of 2021
HAC 41 of 2021
HAC 42 of 2021
HAC 43 of 2021
HAC 44 of 2021
HAC 105 of 2021


STATE

V

  1. T.V [Juvenile One]

2) M.J.M [Juvenile Two]

3) K.T [Juvenile Three]
Counsel : Mr. J. Nasa for the State.
Ms. K. Boseiwaqa for all the Juveniles.

Mr. E. Toutou for and on behalf of the Social Welfare Department.


Date of Submissions: 21 December, 2021

Date of Hearing : 22 December, 2021

Date of Punishment: 30 December, 2021


PUNISHMENT

(The name of all the juveniles are suppressed they will be referred to as “T.V”, “M.J.M” and “K.T” respectively).

  1. All the juveniles are charged by virtue of the following information filed by the Director of Public Prosecutions dated 21st May, 2021 (two information, HAC 40 and 44 of 2021), 9th April, 2021(two information HAC 41 and 42 of 2021), 28th May, 2021 (HAC 43 of 2021) and 11th November, 2021 (HAC 105 of 2021) respectively:

HAC 40 of 2021


T. V and M. J. M are charged with the following offences:


FIRST COUNT
Statement of Offence

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

Particulars of Offence


T.V AND M.J.M, with others, between the 13th day of February, 2021 and the 14th day of February, 2021 at Nadi in the Western Division, broke and entered into the VOTUALEVU PHARMACY as trespassers, with 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 AND M.J.M, with others, between the 13th day of February, 2021 and the 14th day of February, 2021 at Nadi in the Western Division, dishonestly appropriated (stole) cash of $200.00, 1 x Samsung J1 mobile phone and assorted stocks, the property of VOTUALEVU PHARMACY, with the intention of permanently depriving VOTUALEVU PHARMACY of the said properties


THIRD COUNT
Statement of Offence

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

Particulars of Offence


T.V AND M.J.M, with others, between the 13th day of February, 2021 and the 14th day of February, 2021 at Nadi in the Western Division, broke and entered into the BILLIONS HAIR CUT as trespassers, with intent to commit theft.


FOURTH COUNT
Statement of Offence

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


Particulars of Offence


T.V AND M.J.M, with others, between the 13th day of February, 2021 and the 14th day of February, 2021 at Nadi in the Western Division, dishonestly appropriated (stole) cash of $500.00 and 1 x head set beats with its black oval case, the property of BILLIONS HAIR CUT, with the intention of permanently depriving BILLIONS HAIR CUT of the said properties.



HAC 41 of 2021


T.V AND K.T are charged with the following offences:


COUNT ONE
Statement of Offence

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

Particulars of Offence


T.V and K.T, on the 11th of February 2021, at Nadi in the Western Division, entered into the restaurant of PRANISH SHARMA, as trespassers, with intent to commit theft.


COUNT TWO
Statement of Offence

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


Particulars of Offence


T.V and K.T, on the 11th of February 2021, at Nadi in the Western Division, dishonestly appropriated (stole) 12 cans Fanta juice, 12 cans Coke, 1 carton Fanta orange juice 1.25 litres, 2 cartons Fruit Cocktail Juice, ½ carton 2 litre Coke juice, assorted groceries and cash of $1300.00, the properties of PRANISH SHARMA with the intention of permanently depriving PRANISH SHARMA of the said properties.


HAC 42 of 2021


T.V, M.J.M & K.T are charged with the following offences:


FIRST COUNT
Statement of Offence

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

Particulars of Offence


T.V, M.J.M & K.T between the 17th day of February, 2021 and the 18th day of February, 2021, at Nadi in the Western Division, broke into the shop SHENH HAI TRADE CO PTE LTD as trespassers, with 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, M.J.M & K.T between the 17th day of February, 2021, and the 18th day of February, 2021, at Nadi in the Western Division, dishonestly appropriated (stole) assorted cigarettes, assorted recharge cards, black Bluetooth speaker, 1 x pink ladies bag, 30 x gas lighters, 1 x printer, assorted food items and assorted stationery items, the property of SHENH HAI TRADE CO PTE LTD with the intention of permanently depriving SHENH HAI TRADE CO PTE LTD of the said property.


THIRD COUNT
Statement of Offence

FAILURE TO COMPLY WITH ORDERS: Contrary to section 69 (1) (c) and (3) (v) of the Public Health Act 1935 and section 2 of the Public Health (Infectious Diseases) Regulation 2020.


Particulars of Offence


T.V, M.J.M & K.T between the 17th day of February, 2021, and the 18th day of February, 2021, at Nadi in the Western Division, without lawful excuse, failed to comply with orders of Permanent Secretary of Health and Medical Services by breaching the curfew hours imposed from 11pm to 4am which was set in place for the protection of Public Health.


HAC 43 of 2021


T.V, M.J.M & K.T are charged with the following offences:


FIRST COUNT
Statement of Offence

FAILURE TO COMPLY WITH ORDERS: Contrary to section 69 (3) of the Public Health Act 1935 and Regulation 2 of the Public Health (Infectious Diseases) Regulation 2020.


Particulars of Offence


T.V, M.J.M & K.T, between the 17th day of February, 2021 and the 18th day of February, 2021, at Nadi in the Western Division, without lawful excuse failed to comply with orders of the Permanent Secretary for Health and Medical Services by breaching the curfew hours from 11pm and 4am, an order deemed necessary for the protection of public health.


SECOND COUNT
Statement of Offence

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


Particulars of Offence


T.V, M.J.M & K.T between the 17th day of February, 2021, and the 18th day of February, 2021, at Nadi in the Western Division, broke and entered into the SAW SERVICES as trespassers, with intent to commit theft.


THIRD COUNT
Statement of Offence

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


Particulars of Offence


T.V, M.J.M & K.T between the 17th day of February, 2021, and the 18th day of February, 2021, at Nadi in the Western Division, dishonestly appropriated (stole) 1 x pointed Hilti Chisel, 1 x Score and Snapp knife, 1 x Stanley hammer, 1 x Stanley Retractable knife, 1 x Drive Socket Set (21 pieces), 1 x Stanley Chisel and cash of $1555.00, the property of SAW SERVICES, with the intention of permanent depriving SAW SERVICES, of the said properties.



HAC 44 of 2021


T.V, M.J.M & K.T are charged with the following offences:


FIRST COUNT
Statement of Offence

FAILURE TO COMPLY WITH ORDERS: Contrary to section 69 (3) of the Public Health Act 1935 and Regulation 2 of the Public Health (Infectious Diseases) Regulation 2020.


Particulars of Offence


T.V AND K.T between the 6th day of February, 2021 and the 7th day of February, 2021 at Nadi in the Western Division without lawful excuse failed to comply with orders of the Permanent Secretary and Medical Services by breaching the curfew hours from 11pm to 4am, an order deemed necessary for the protection of public health.


SECOND COUNT
Statement of Offence


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

Particulars of Offence


T.V AND K.T between the 6th day of February, 2021 and the 7th day of February, 2021 at Nadi in the Western Division, broke and entered into the COURTS MEGA STORE as trespassers, with intent to commit theft.


THIRD COUNT
Statement of Offence


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


Particulars of Offence


T.V AND K.T between the 6th day of February, 2021 and the 7th day of February, 2021 at Nadi in the Western Division, dishonestly appropriated assorted gadgets and assorted clothes and shoes, the property of COURTS MEGA STORE, with the intention of permanently depriving COURTS MEGA STORE of the said properties.


FOURTH COUNT
Statement of Offence


FAILURE TO COMPLY WITH ORDERS: Contrary to section 69 (3) of the Public Health Act 1935 and Regulation 2 of the Public Health (Infectious) Diseases) Regulations 2020.


Particulars of Offence


T.V AND M.J.M, on the 19th day of February, 2021 at Nadi in the Western Division, without lawful excuse failed to comply with orders of the Permanent Secretary for Health and Medical Services by breaching the curfew hours from 11pm to 4am, an order deemed necessary for the protection of public health.


FIFTH COUNT
Statement of Offence

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

Particulars of Offence


T.V AND M.J.M, on the 19th day of February, 2021 at Nadi in the Western Division, broke and entered into the COURTS MEGA STORE as trespassers, with intent to commit theft.


SIXTH COUNT
Statement of Offence


ATTEMPT TO COMMIT THEFT: Contrary to section 44 and section 291(1) of the Crimes Act 2009.


Particulars of Offence


T.V AND M.J.M, on the 19th day of February, 2021 at Nadi in the Western Division, attempted to dishonestly appropriate (stole) assorted gadgets, clothes and shoes, the property of COURTS MEGA STORE, with the intention of permanently depriving COURTS MEGA STORE of the said properties.


HAC 105 of 2021


JOJI VUAVIRITAKANAMATANITU KAUNISELA and T.V are charged with the following offences:


FIRST COUNT
Statement of Offence


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

Particulars of Offence


JOJI VUAVIRITAKANAMATANITU KAUNISELA and T.V on the 30th of September, 2021, at Nadi in the Western Division, broke into the COURTS MEGA STORE as trespassers, with intent to commit theft.


SECOND COUNT
Statement of Offence

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


Particulars of Offence


JOJI VUAVIRITAKANAMATANITU KAUNISELA and T.V on the 30th of September, 2021, at Nadi in the Western Division, dishonestly appropriated (stole) assorted mobile phones, charging cables, 1 x RGM gaming mouse and 2 x sky bags, the property of COURTS MEGA STORE with the intention of permanently depriving COURTS MEGA STORE of the said property.


THIRD COUNT
Statement of Offence

FAILURE TO COMPLY WITH ORDERS: Contrary to section 69 (1) (c) and 3 (b) of the Public Health Act 1935 and section 2 of the Public Health (Infectious Disease) Regulation 2020.

Particulars of Offence


JOJI VUAVIRITAKANAMATANITU KAUNISELA and T.V on the 30th of September, 2021, at Nadi in the Western Division, without lawful excuse, failED to comply with orders of Permanent Secretary of Health and Medical Services by breaching the curfew hours imposed from 11pm to 4am which was set in place for the protection of Public Health.


  1. On 25th November, 2021 the juvenile M.J.M and on 2nd December, 2021 the juvenile T.V pleaded guilty to four counts in HAC 40 of 2021 in the presence of their counsel. On 9th of December, 2021 both the above mentioned juveniles admitted the summary of facts read.
  2. On 25th November, 2021 the juvenile K.T and the juvenile T.V pleaded guilty to two counts in HAC 41 of 2021 in the presence of their counsel. On the same date both the above mentioned juveniles admitted the summary of facts read.
  3. On 25th November, 2021 the juvenile M.J.M and the juvenile K.T pleaded guilty to three counts in HAC 42 of 2021 in the presence of their counsel. On 2nd December, 2021 the juvenile T.V pleaded guilty in the presence of his counsel. On 16th December, 2021 all the juveniles admitted the summary of facts read.
  4. On 25th November, 2021 the juvenile M.J.M and the juvenile K.T pleaded guilty to all three counts. On 2nd December, 2021 the juvenile T.V pleaded guilty to all three counts in HAC 43 of 2021 in the presence of their counsel. On 16th December, 2021 all the juveniles admitted the summary of facts read.
  5. On 25th November, 2021 the juvenile K.T and the juvenile M.J.M pleaded guilty and on 2nd December, 2021 the juvenile T.V pleaded guilty in HAC 44 of 2021 in their presence of their counsel to all six counts.
  6. Thereafter, on 16th December, 2021 all the juveniles admitted the summary of facts read by the state counsel.
  7. On 2nd December, 2021 the juvenile T.V pleaded guilty to all three counts in HAC 105 of 2021 in the presence of his counsel. Thereafter on 16th December, 2021 the juvenile admitted the summary of facts read by the state counsel.
  8. The summary of facts in each file admitted by the juveniles were as follows:

HAC 40 of 2021


  1. BACKGROUND
    1. b) M.J.M (“J2”), 13 years of age, Student of Malawai, Nadi.
1.2 The complainant is Nilesh Kumar (“PW1”), 37 years of age, Businessman of Bulawai, Votualevu, Nadi.

2. INCIDENT


2.1 PW1 is a pharmacist businessman by occupation based at Votualevu Shopping Complex (Mega Hardware).


2.2 On 14 February 2021, at around 8.14am, PW1 received a call from the building landlord namely Iran Khan informing him that there was a break-in at his pharmacy and that the building owner has lodged a report with the police.


2.3 PW1 then informed his manager namely Mr Samesh Chand. PW1 went to the pharmacy and realized the following items as missing:-

Property
Value
a) Float cash
$200.00
b) Company mobile phone – Samsung J1 (black)
$200.00
c) Stock – namely juice, coke, Fanta, Sprite, Perfume, After Shave, Cologne, Chocolate, Chewing gums and lollies
$700.00
TOTAL
$1,100.00

2.4 Sonam Salini (“PW 2”) runs a hair salon at Mega Store Building at Votualevu. On 14 February 2021, at about 9.30am, the building owner to her shop called and informed her that there was a break-in at her shop. PW2 then went to check the shop and saw items scattered on the floor. Upon checking, PW2 discovered that $500.00 cash which was left in a white envelope was missing from the drawer and 1 x head set beats, blue in colour with its black oval case was also missing. The point of entry to the shop was through the main door.

2.5 The matter was reported to Police and an investigation was conducted.


2.6 Meresiana Delai (“PW 3”) said that she saw her son namely Tevita Vuli return to their house with one Samsung J1 mobile phone. She questioned her son regarding the mobile phone, but he said that it belonged to one of their neighbours, Freddy. The police later came to their house and enquired about the said mobile phone. According to PW3, her son was not at home, but she handed over the mobile phone to police.


2.7 On 19 February 2021, Trevor Bennett (“PW 4”) was on mobile patrol with CPL Veresa on fleet 324 when they received a call via radio from PC Eremasi (“PW 5”) seeking their assistance at Courts Mega Shop near Votualevu roundabout. Upon arriving at Courts Mega Shop, the two juveniles were arrested as they were in the process of stealing from the said shop.


2.8 The two juveniles were interviewed under caution in the presence of their parents and/or guardians. The two juveniles admitted breaking into the Votualevu Pharmacy and the Billion Hair Cuts shop at Votualevu during curfew hours. J1 admits that he took out some cash including notes and coins from the drawers while one Iliesa went to the other room and took some head set from the Billion Hair Cuts shop. J1 also admits that he took some gel and cash from the Pharmacy. They shared the money amongst themselves and went home (see from Q&A: 44 - 61).


2.9 J2 confirmed the allegations to be true and confirmed that he committed it in the company of three other friends. He also admits that they stole cash and bottles of juice from the pharmacy. He was shown the mobile phone recovered from PW3 and confirmed that it was the same stolen from the pharmacy. The also stole cash and 1 x beats blue headset from PW2’s shop (see from Q&A: 27 – 44).


HAC 41 of 2021


  1. The complainant is Pranish Sharma [hereafter PW1], 30 years, Businessman of Natova, Sabeto.
  2. Juvenile 1 is T.V (hereafter J1), 15 years, student of Malawai Housing, Nadi.
  3. Juvenile 2 is K.T (hereafter J2), 13 years, student of Malawai Housing, Nadi.
  4. On the 11/02/2021 at about 7.00am PW1 discovered that his restaurant was broken into and the following items were stolen;

TOTAL $1,773.27


  1. The matter was reported to Police and investigations were carried out.
  2. J1 (T.V) was interviewed by PC 5133 Bola in the presence of his brother Viliame Rokotabaivalu Delana whereby he admitted that he went to the curry shop at Votualevu to go and break in with his friends Masi and Akitoa [Q&A 36 – 37]. They had planned together to break into the shop [Q&A 39]. As soon as they arrived at the curry shop they pushed one counter and then climbed into the shop. He was the first one to go inside followed by his other two friends. They searched for money inside the shop and found a money box from which they took out the cash. They then took some bottles and can juice (coke, Fanta, Juicy) from the fridge and packed into 3 cartons. They also took tinned food stuffs and some meat [Q&A 40 – 47]. All of them then shared the money, juice and food [Q&A 48 record of interview attached at Tab 1].
  3. J2 (K.T) was interviewed by Laisenia Seru in the presence of his Dad Lui Waqasaqa. J2 admitted that upon reaching Vanua Plaza at Shonal’s shop T.V told him to wait outside. T.V then went inside the shop and opened the window from the front counter. T.V then called J2 inside the shop and told them to pack all the juice. They sat down inside the shop while T.V was looking for money. When T.V found the money, they left the shop [Q&A 40 – 48]. He clearly recalls bringing 1 carton juice, 1 plastic coke and Fanta juice [Q&A 52 record of interview attached at Tab 2].
  4. There were no recoveries in the matter.

HAC 42 of 2021


  1. The complainant in this matter is Wei Jia, 40 years old, business owner of Retail Shop, Namaka, Nadi.
  2. The 1st juvenile of this matter is T.V, 15 years old, student of Malawai Housing, Votualevu, Nadi.
  3. The 2nd juvenile of this matter is M.J.M, 13 years old, student of Malawai, Votualevu, Nadi.
  4. The 3rd juvenile of this matter is K.T, 13 years old, student of Lot 31 Malawai, Votualevu, Nadi.
  5. On the 17th at around 10pm the complainant closed his shop and securely locked all doors. Also, on the 17th of February, 2021 all the juveniles planned to break into shops.
  6. All juveniles had left their places of residence on 17th of February, 2021 at around 10pm and had walked to Namaka area. They all had reached the complainant’s retail shop and the 1st juvenile using a metal pipe forced the window open and they all entered the shop.

7. In the shop the juveniles stole the following items:


a. 35 gross x BH 10 cigarettes valued at $2,800.00

b. 25 gross x BH 20 cigarettes valued at $3,950.00

c. 2 gross x BH 10 Ice Burst cigarettes valued at $ 188.00

d. 3 gross x BH 20 Ice Burst cigarettes value at $ 540.00

e. 5 packets x Pall Mall cigarettes valued at $ 39.00

f. Assorted Vodafone, Ink and Digicel recharge cards valued $ 250.00

g. 1 x Pink ladies bag valued at $ 300.00

h. 1 x Black Bluetooth speaker valued at $ 250.00

i. 30 x gas lighters valued at $ 96.00

j. 1 x 10kg rice valued at $ 22.95

k. 1 x 5kg rice valued at $ 25.95

l. 4 x Coke 1.25 litres valued at $ 15.20

m. 4 x Coke 200 ml can valued at $ 8.00

n. 6 x Sugar 1kg valued at $ 13.80

o. 4 x Sunbell Tuna valued at $ 7.60

p. 30 x Baking paper valued at $ 48.00

q. 3 x Pringles packets valued at $ 18.00

r. 3 x Drawing books valued at $ 2.28

s. 3 x Maths book valued at $ 5.04

t. 2 x Marker pens valued at $ 3.00


Total amount items stolen: $8,583.32

  1. On the 18th of February, 2021 at around 6.30am, the complainant went to his shop and saw that it had been broken into and he reported this to the police.
  2. Investigations were carried out and all the three juveniles were caution interviewed. Upon being caution interviewed the 1st juvenile in the presence of Viliame Delana admitted that he with the other two juveniles had planned to go and steal in Namaka (Q&A: 45 – 48). That he had used a metal pipe and forcefully opened the window to the shop (Q&A: 54). Further that while in the shop he stole recharge cards, Bluetooth speaker, plenty cigarettes and sunbell tuna (Q&A 64).
  3. The 2nd juvenile when caution interviewed and in the presence of Sovaia Seru, admitted that he had planned with the other juveniles to break-in to places (Q &A: 30). That they had gone to the back of the shop and entered the complainant’s shop. Further while he was in the shop he stole loose packets of cigarettes, packets of matches, milo and juice (Q&A 37).
  4. The 3rd juvenile when cautioned interviewed and in the presence of Lui Waqasaqa, admitted that T.V broke the side door by using a steel metal and they entered the shop (Q&A 38). That while inside the shop, they stole assorted cigarettes, recharge cards and the music box (Q&A 39).
  5. Also during investigations, the police had conducted a search of vehicle registered no. CP 400 at the 1st juveniles’ residence and recovered some of the complainant’s property.

Attached are copies the search list of items recovered.


  1. The juveniles by committing the aggravated burglary of the complainant’s shop breached the national curfew that was in place.

HAC 43 of 2021


  1. BACKGROUND
  2. INCIDENT

2.1 PW 1 is the Manager of Saw Services, located at Shop 6, Lot 1 Cawa Road, Namaka Industrial Area.


2.2 On 18 February 2021, at around 7.00am, PW 1 was at home when he received a phone call from his neighboring shop owner that there was a break-in in their respective shops.


2.3 PW 1 upon receiving this information went to his shop and discovered that the grill to the back window had been forcefully removed. He also found that 3 louver blades were removed which was the point of entry into his shop. PW 1 checked around the shop and listed the following items as missing;


  1. 1 x pointed Hilti chisel valued at $45.00
  2. 1 x score and snap knife valued at: $35.00
  1. 1 x Stanley hammer valued at: $45.00
  1. 1 x Stanley retractable knife valued: $25.00
  2. 1 x drive socket set (21 pieces) valued at: $95.00
  3. 1 x Stanley chisel valued at: $45.00
  4. Cash in the value of: $1,555.00

TOTAL: $1,845.00


2.4 On 19th February 2021, DC Trevor Bennett (“PW 2”) was on mobile patrol with CPL Veresa on fleet 324 when they received a call via radio from PC Eremasi (“PW 3”) seeking their assistance at Courts Mega Shop near Votualevu roundabout. Upon arriving at Courts Mega Shop, J1 and J3 were arrested as they were in the process of stealing from the said shop.


2.5 Upon arrest, J1 and J3 then led Police to J2’s house at Malawai Housing as they were all involved in a series of burglary cases within the Namaka area.


2.6 Upon investigation, a 1 x Stanley wood chisel and 1 x Stanley retractable knife was recovered by Police. PW 1 confirmed through identification at the Namaka Police Station that the items recovered belongs to him and were missing from his shop.


2.7 All three juveniles were interviewed under caution in the presence of their parents and/or guardians. J1 admits that he planned with his accomplices to break into PW1’s shop in Namaka, amongst others. He admits that he and his accomplices forcefully entered PW 1’s shop through the back window and stole therein. He left out through the window again with his accomplices. J1 admits that he hid the items inside a wrecked car near his house (see from Q&A 37 – 70).


2.8 J2 admits the allegation to be true and that he planned to carry it out with his accomplices. He admits that they broke into PW 1’s Saw Service Shop. They removed three louver blades and entered the said shop (see from Q&A 27 – 43).


2.9 J3 admits that he assisted his accomplices carry out the break-in at PW 1’s Saw Services Shop, where they stole some tools. He admits that they then went to J1’s house and hid the items inside a car parked outside their compound (Q&A 36 – 52).


2.10 The material time upon which J1, J2 and J3 burgled and stole from PW 1’s shop was between the hours of 11.00pm and 4.00am on 18th February, 2021.


HAC 44 of 2021


  1. The complainant in this matter Manohar Sami (hereinafter referred to as ‘PW 1’) 52 years of age, Branch Manager at Courts Fiji Limited residing at Viseisei, Lautoka
  2. The 1st juvenile in this matter is T.V, 15 years old, student of Malawai Housing, Votualevu, Nadi.
  3. The 2nd juvenile in this matter is M.J.M, 13 years old, student of Malawai, Votualevu, Nadi.
  4. The 3rd juvenile in this matter is K.T, 13 years old, student of Lot 31 Malawai, Votualevu, Nadi.
  5. PW1 is the Branch Manager at the Courts Mega Store situated at Votualevu, Nadi.
  6. On 6th of February, 2021, after they closed for business at 3pm, PW1 and the security guard securely closed up all the doors and switched off all the lights at the Courts Mega Store.
  7. On 7th of February, 2021 at about 8.30am, PW1 and one Alena arrived at the Courts Mega Store for work. As they opened the store and entered, PW1 heard the alarm was going on so he disarmed it. PW1 saw the display phones at the ICT section were all missing and the area was ransacked. PW1 then rang the Namaka Police Station and lodged a report.
  8. Upon checking the store, PW1 noticed that the glass wall facing the car park had been broken into and that the corporate office was ransacked. Upon proceeding to the side, PW1 notice that the side door had been broken. There were also items stolen from the Sports World section. The team leaders of each section at the Courts Mega Store were then instructed to check their respective sections and confirm what was missing.
  9. Selita Verenasiga (hereinafter referred to as ‘PW2’) the team leader for Small Appliances section at the Courts Mega Store checked her section and discovered the following items missing:-

The total value of the items allegedly stolen is $1,919.95.


  1. Shayal Shartika Singh ( hereinafter referred to as ‘PW3’) the team leader at the ICT Section at the Courts Mega Store checked her section and discovered the following items missing:-

The total value of the items allegedly stolen is $33,351.00

  1. Kamal Deo (hereinafter referred to as ‘PW4’) the team leader at the Sports World Section at the Courts Mega Store checked his section and noted the following items missing:-

The Total value of the items allegedly stolen is $ 17,153.55


  1. Anish Kumar (PW 5) the Team Manager for the Corporate Service checked his section and noted the following items missing: -

The total value of items allegedly stolen is $3288.00


  1. On the 19th February, 2021 at about 4.20am, Mohammed Saheed (hereinafter referred to as ‘PW6’), the Manager of Courts Mega Branch, received a call from police informing that there was another break – in at their shop and that one of the suspects was still inside the shop. PW 5 then made his way to the Courts Mega Branch and saw the police officers at the scene. PW5 opened the door to the shop and saw the ICT section was all in a mess and the glasses were broken.
  2. PW 5 and the Police then proceeded to the 2nd floor as they were looking for the 2nd suspect. Upon arriving at the assembly area, PW5 noticed the point of entry was through the roof where the air ventilation was damaged and a hole was visible from the rooftop which was the point of entry and exit. PW5 also discovered the door glass was smashed at the corporate department in order to gain entry into the said office. The drawers were ransacked and everything were scattered. PW5 found 6 bags of different brands which had different brands of mobile phones, tablets, IPhone, Bluetooth speakers, charges and cables, shorts, sportswear, shoes, bags and earphones. All these items were left on the 2nd floor by the suspects and were collected by them from various departments. According to PW5, the total value of the items packed in the bags was $45,277.00.
  3. PW5 viewed the CCTV footage and noticed two I-taukei male had entered the shop and were moving around the ICT section before exiting to the assembly area.
  4. SGT 3998 Savenaca Navuso (PW7) was on duty on 19/2/21 when he received a report at about 3.18am that two unknown youths were seen inside the Courts Mega Branch. PW6 and their team attended to the report and upon search of the area, J1 and J3 were both arrested as they were in the process of stealing from the said shop. J1 and J3 then led the police to J2’s house at Malawai Housing as they were involved in a series of burglary cases within the Namaka area.
  5. Lui Soro (hereinafter referred to as ‘PW8’) confirmed that he bought a blue Samsung mobile phone from J1 for $50.00.
  6. Jerry Peniasi Turavu (hereinafter referred to as ‘PW9’) confirmed that he bought one white Samsung A12 and a black Oppo brand phone from one Junior for $40.00. He did not know that the mobile phones were stolen until police came to his house and took him to the police station. He later came to know that Junior was J1.
  7. They all had reached the complainants retail shop and the 1st juvenile using a metal pipe forced the window open and they all entered the shop.
  8. The three juveniles were interviewed under caution in the presence of their parents/guardians.
  9. J1 said that he met with one Pona and J2 and they planned to break into the Courts Mega Store. On their way to Courts Mega Store, they saw a blue car parked at the back of a Pharmacy at 8 miles. He broke the quarter glass of the blue car using a screw driver. He took some coins and a silver wheel jack from inside the blue car. He and J2 then walked towards Courts Mega Store while Pona went back home. At the Courts Mega Store, they climbed up the roof by hanging to the air-con engine and sliding using the pipe. He broke the glass at the front using the wheel jack while J2 was watching the security officer who was sleeping at the corner. They then entered the shop and he covered his face with a piece of cloth. He went down to the building where the phones were on display and started filling a blue bag with 4 mobile phones (2 x Samsung phones and 2 x Oppo phones) which were on the display glass. He also took the clothes (sportswear) and a red music box that were on display and put them inside the bag. He took a black puma bag from the shop and put 4 pair of canvass inside the bag. They came out of the building through one of the back door. J1 said that J2 also took 2 bags filled with some phones, shoes and clothes. He took the two bags and went straight home. He hid the two bags somewhere at the grass area near the shop. The items were recovered by police inside the old van outside their house. J1 identified 1 x white Samsung phone, 1 x black Oppo phone, 1 x red music box, 1 x grey Under Armor canvass and 1 x black Puma bag when shown to him during his record of interview. J1 said that he sold the 2 Samsung phones to Mosese for $150.00 each and 8 canvass to some of the rugby boys for $60.00 each. J1 also admits that he with another broke into Courts Mega Store between 18/02/21 and 19/2/21 and stole some items from therein. It was his idea and he was with J3. He pulled the window from the back of the building and they entered in with Michael. They were filling the bags when the police came. They filled the red and white knapsack with 1 x purple Bluetooth speaker, some expensive phones, earphones, phone charges and phone accessories. They filled the pink bag with a 2 x black Ipads, some clothes and earphones. He was hiding on top of the roof when the police came and he surrendered himself. J1 said that J3 also surrendered himself to the police. The items were seized by police. J1 went for reconstruction and showed police the route he followed on both occasions and how he entered the Courts Mega Store (Q&A. 32 – 138).
    1. J2 admits the first allegation put to him and said that it was only him and J1 that were part of the group. J2 said that he went to J1’s house and from there they met one Pona. They walked from Malawai subdivision to the bus stop where they turn left and saw a vehicle parked on the roadside. J1 cracked the right rear glass of the vehicle and open the door. J2 saw J1 took some coins from inside the vehicle and gave some to Pona. Pona then left and he walked with J1 to the Flee market. At the Flee market, they talked and decide to break-in at the Courts Mega Store. They walked towards the Courts Mega Store and entered from the back gate which was open. They went to the back of New World and climbed from the back till they reached the top. They climbed on the Air Conditioner machine from the back of Courts Mega Store and slide down on the pipe to come to the front. J1 then broke the glass while he was on look-out. They then entered the store and covered their heads with the pillow cover. They took one bag each and took all the phones with the charger and put them inside the bag. J2 dos not know how many phones but said it was a lot. They took the phones that were inside the glass on the side of the wall and 1 red music box. J2 took another bag and put some clothes and a blue rugby boot inside it. They then came up again and he saw J1 carrying 2 bags (black in color). They came out of the store and walked home. J2 then left his 2 bags on the side of the road as they were heavy but he took out 1 Samsung A31 mobile phone. He helped J1 carry his bags and walked to J1’s house where they hid the bags in the car parked outside J1’s house. J2 said that he later went home and his father saw the phone and questioned him about it. J2’s father then took the phone from him because he sensed that the phone was stolen. J2 identified the black PUMA bag containing clothes and the blue puma brand boot during the caution interview that was recovered from J1’s house. He also identified 1 x black Samsung Galaxy A31 mobile phone that was recovered from Ivamere Kasaqa which was stolen from Courts Mega Store. J2 was taken for reconstruction of the scene and showed police where they hid the stolen items. J2 denied that he was part of the break-in and theft that occurred on 19/02/21 (Q&A.36-92).
    2. J3 said that after having dinner on 18/02/21, he went to J1’s house because J1 had informed him earlier to go to his house so that they could go to the Flee market during curfew to steal. They went to the Flee market and waited till 3am. At around 3am, they walked towards the end of New World Supermarket and walked up the stairs to Courts Mega Store. They went to the rooftop and pushed the fan to the Air-con and managed to break it. They entered into the building through the gap from the broken Air-con fan. They went to the mobile section and J1 went to bring an orange and black two strapped bag. J3 identified this bag when shown to him. J3 also went and brought a black two strapped bag from where J1 brought the first bag. J3 identified the said bag when shown to him by police during caution interview. They then took the mobile phones on the shelves and put them in the bag. There were all different brands of mobile phones and were all smartphones (touch screens). They also packed ear phones, ear buds, music boxes and other various gadgets in the bag. They went to check the till and managed to break it but there were only a few coins inside it. They went to the sporting section and took some canvas, slip-ons and clothes branded under Armor and Puma. The police were shining their lights from outside so they left the bags and ran up. They climbed back up from the place they entered from. While they were on the roof top, the police officers were shining their lights from the back so they could not escape from the stairs as the police officers saw them. They were then arrested by the police. J3 was taken for reconstruction of the scene and confirmed the exact place they broke into at Courts Mega Store on 19/2/21. He also confirmed that he only broke once into Court Mega Store (Q&A. 31-89)

Attached are copies of the caution interview of all three (3) juveniles.

  1. The juveniles by committing the aggravated burglary of the complainant shop breached the national curfew that was in place.

HAC 105 of 2021


  1. The complainant in this matter Mohammed Saheed, 53 years old, Branch Manager of Courts Mega Store, Votualevu, Nadi.
  2. The accused in this matter is Joji Vuaviritakanamataintu Kaunisela, 20 years old, unemployed of Malawai, Votulaevu, Nadi.
  3. The Juvenile in this matter is T.V, 15 years old, student of Malawai Housing, Votualevu, Nadi.
  4. On the 29th September, 2021 at around 11pm, the Juvenile and the accused had planned to break into Courts Mega Store at Votualevu, Nadi.
  5. Then on the 30th September, 2021 at around 3am, the accused and the Juvenile breached the curfew hours by leaving their homes and walking to Courts Mega Store. Upon reaching Courts Mega Store, the accused and the juvenile climbed to the roof of the New World Supermarket (right beside Courts Mega store) and juvenile broke the grill of a window with metal tool (used for changing tires) that he had brought from home.
  6. After breaking the grill of the window, the accused and the juvenile entered into Courts Mega Store and stole the following items:
    1. 1 x Black J5 charging cable valued at $ 19.95
    2. 1 x Red J5 charging cable valued at $ 19.95
    1. 1 x Samsung Galaxy A12 mobile phone valued at $399.00
    1. 1 x Samsung Galaxy A22 mobile phone valued at $599.00
    2. 1 x Samsung Galaxy A52 mobile phone valued at $999.00
    3. 1 x Samsung Galaxy A72 mobile phone valued at $1,199.00
    4. 1 x Samsung Galaxy S21 mobile phone valued at $3,099.00
    5. 1 x Samsung Galaxy A32 mobile phone valued at $699.00
    6. 1 x Samsung Galaxy A025 mobile phone valued at $279.00
    7. 1 x RGM gaming mouse valued at $ 99.00
    8. 2 x Sky bags valued at $128.00

Total amount items stolen: $7,539.90


  1. On the same date of the offence, at around 3.17am the complainant had received a call from the security company saying that the alarm had been triggered from multiple zones at the Courts Mega Store.
  2. The complainant had notified the Police of the break-in of the store but by the time the Police had arrived, the Juvenile and other person had left.
  3. Investigations were carried out and the accused and the Juvenile were arrested. Upon being caution interviewed in the presence of Poasa Raikieisi Ratubuli, the juvenile admitted to planning to break into Courts Mega Stores.
  4. That he (Juvenile) left home at around 3am (Q&A 88) and had walked to Courts Mega Store. Further that when they reached the store he had climbed to the top of New World (Q& A 96) and using a metal tool, used for changing tires, he broke the grill on the window (Q&A 102 – 104) and entered the store (Q&A 107)
  5. While in the store, the juvenile admitted that he stole phones and put it in a purple bag (Q & A 109).
  6. When the accused was caution interviewed, he admitted that he had planned to break into Courts (Q&A 54). Further that when they entered into Courts, that he packed mobile phone and headset in a bag (Q&A 93).

Attached is copy of the accused and the juvenile’s caution interview.

  1. During investigations, there were recoveries made from the dwelling house of the juvenile and from the accused.

Attached is a copy of the search list of the items recovered from the accused and the juvenile.


  1. After considering the summary of facts read by the state counsel which was admitted by all the juveniles in their respective files and upon reading their caution interviews, this court is satisfied that all the juveniles have entered an unequivocal plea of guilty on their freewill.
  2. 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 all the offences. All the juveniles also admitted committing the offences in the company of each other or with the accused in HAC 105 of 2021. In view of the above, this court finds all the juveniles guilty as charged.
  3. The learned counsel for all the juveniles presented the following mitigation and personal details:

JUVENILE ONE – T.V


  1. The juvenile was 15 years at the time;
  2. First time in conflict with the law;
  1. Year 10 student;
  1. Pleaded guilty at the earliest opportunity;
  2. Remorseful and apologies for his actions;
  3. Cooperated with police during investigations;
  4. Regrets what he has done;
  5. Seeks forgiveness from the court;
  6. Promises not to reoffend;
  7. Some stolen items have been recovered.

JUVENILE TWO – M.J.M


  1. The juvenile was 13 years at the time;
  2. First time in conflict with the law;
  1. Year 8 student;
  1. Pleaded guilty at the earliest opportunity;
  2. Remorseful and apologies for his actions;
  3. Cooperated with police during investigations;
  4. Seeks the forgiveness of the court;
  5. Promises not to reoffend;
  6. Some stolen items have been recovered.

JUVENILE THREE – K.T


  1. The juvenile was 13 years at the time;
  2. First time in conflict with the law;
  1. Year 8 student;
  1. Pleaded guilty at the earliest opportunity;
  2. Remorseful and apologies for his actions;
  3. Cooperated with police during investigations;
  4. Seeks the forgiveness of the court;
  5. Promises not to reoffend;
  6. Some stolen items have been recovered.

TARIFF


  1. The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.
  2. The accepted tariff for this offence is a sentence between 18 months to 3 years imprisonment (see Leqavuni v. State, Criminal Appeal No. AAU 106 of 2014 (26 February, 2016).
  3. For the offence of theft the maximum penalty isears imprisonment.
      1. The tariff for the offence of theft is settled. In Mikaele Ratusili vte, Cre, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft as follows:

    “#8220;(i) For the first offence of s theft the sentencing rangerange should be between 2 and 9 months.

    (ii) any subsequent offence should attract a penalty of ast 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.”

    1. For the offence of failure to comply with orders the maximum penalty is a fine not exceeding $10,000.00 or imprisonment term not exceeding 5 years or both fine and imprisonment.
    2. 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. As per the order of this court the Social Welfare Department, has prepared a pre-punishment report for all the juveniles for which this court is grateful. The reports recommend the following:
      1. All the juveniles be given a second chance, they are dedicated students who are keen to complete their studies;
      2. All the juveniles have family support which is a positive sign for them;
      1. All the juveniles are remorseful and they understand the consequences of their actions which they do not wish to repeat; and
      1. Counseling, probation and community supervisors will be of assistance to all the juveniles.

    PARENTAL VIEW/SUPPORT


    1. The grandparents of the first juvenile and the father of the third juvenile were present in court. It is unfortunate that the grandmother of the third juvenile could not be in court. The grandparents and the father of the juveniles take responsibility of what has happened, they are sorry for the actions of their grandson and son. They are going to make sure both the juveniles are properly supervised and they do not repeat what has happened.
    2. All the juveniles also expressed remorse in court and were genuinely apologetic for what they had done. I am sure this experience was an eye opener for all of them. The juveniles had to face their family and friends which has also contributed to a learning experience which has taught them to keep away from conflict with the law.

    DETERMINATION


    21. 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.”


    1. Taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate punishment for all the offences and all the juveniles.
    2. Considering the objective seriousness of the offences committed I select 18 months imprisonment (lower range of the tariff) as the aggregate punishment of all the offences. The punishment is increased for the aggravating factors and a reduction allowed for the early guilty plea, mitigation, and police custody/detention.
    3. The final aggregate punishment for the all offences is 2 years 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.
        style='text-indentndent:0pt; margin-top:0pt; margin-bottom:0pt;' value='25' value="25">In Sts. Alipate Sorovanalagnalag others, Revisional Case No. HAR 006 of 2012 (31 May 2012), Goundar J. reiterated the fthe following guidelines in respect of suson of a sentence at paragraph 23:

    p>“[23] In DPP v Jolame Pita;(1974) 204) 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 imme imprisonment inappropriate. In that case, Grant Actg. CJ . 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. The juveniles arng persons sons as per the Juveniles Act, they are of good character, isolated offences were committed by them, they were 13 andears of age at the time of the offending, pleaded guilty at the earliest opportunity, are gare genuinely remorseful, cooperated with police and they take full responsibility of their actions. These special reasons render immediate imprisonment term inappropriate.
    2. I am sure all the juveniles with parental and family guidance, supervision and support have a bright future ahead of them hence an imprisonment term will not augur well for their future, the juveniles have been in police custody/detention which is in itself an adequate and appropriate punishment, an experience that will remind them to keep away from conflict with the law. This court has taken into account rehabilitation over and above deterrence.
    3. 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 the case.
    4. Let me remind all the juveniles that leading a life within the boundaries of criminal activities do not assist it only takes a person deeper and deeper into a world of uncertainty and misery. The society does not condone such activities and this court also denounces such behaviour. In this proceedings juvenile one has six files, juvenile two has four files, and juvenile three also has four files which is a matter of concern.
    5. This is an opportunity for all the juveniles to stop entering the world of uncertainty and lead a happy life with their parents, family members and siblings. The only reason why the punishment is lenient because the Juveniles Act imposes a limit on the punishment of young persons.
    6. In summary the juveniles are given a punishment of 2 years imprisonment as an aggregate punishment respectively for all the offences which is suspended for 3 years. The effect of suspended sentence is explained. The following orders are to take effect immediately.

    ORDERS


    1. The juveniles are given a punishment of 2 years imprisonment as an aggregate punishment for the respective counts mentioned in the information which is suspended for 3 years with immediate effect;
    2. The parents or the guardian or the next of kin of the juveniles are to sign a good behaviour bond on behalf of each juvenile in the sum of $500.00;
    1. The Social Welfare Department is to immediately arrange for the counseling of all the juveniles in the presence of their parents or guardians or next of kin with the view of assisting them in keeping out of peer group influence and to engage in education and training;
    1. The Social Welfare Department is also at liberty to work out any programs or plans which will be in the interest of the juveniles;
    2. It is the responsibility of the parents or the guardians or the next of kin of all the juveniles to ensure that the juveniles obey any directions given by the Social Welfare Department;
    3. The Social Welfare Department in consultation with the parents or the guardians or the next of kin of all the juveniles is at liberty to appoint probation or community officers who can supervise the juveniles;
    4. A copy of this punishment is to be served on the Officer in Charge of the Social Welfare Department;
    5. 30 days to appeal to the Court of Appeal.

    Sunil Sharma
    Judge


    At Lautoka
    30th December, 2021


    Solicitors
    Office of the Director of Public Prosecutions for the State.
    Office of the Legal Aid Commission for all the Juveniles.


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