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State v T.M. (Juvenile) [2022] FJHC 131; HAC033.2021 (21 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Crim. Case No: HAC 33 of 2021


STATE


vs.


T. M. (Juvenile)


Counsel: Ms. B. Kantharia for the State
Mr. E. Sau for Accused

Date of Sentence 21st March 2022


PUNISHMENT


(Name of the Accused is suppressed and will be referred to as T. M. or the juvenile)


  1. Your were charged with the following offences by the information dated 3rd November 2021filed by the Director of Public Prosecutions;

COUNT ONE

Statement of Offence

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


Particulars of Offence

T.M with another between the 31st day of December 2020 and 2nd January 2021 at Nakasi in the Central Division, entered into the dwelling house of SAULA MATAVESI as trespassers, with intention to commit theft therein.


COUNT TWO

Statement of Offence

THEFT: contrary to Section 291 (1) of the Crimes Act, 2009.


Particulars of Offence

T.M with another between the 31st day of December 2020 and 2nd January 2021 at Nakasi in the Central Division, dishonestly appropriated 1 x Sheffield Bluetooth Speaker, 1 x Under Armor Brand Bag and 1 x HP Laptop, the property of SAULA MATAVESI with the intention of permanently depriving SAULA MATAVESI of his properties.


  1. You have admitted the following amended summary of facts;

INCIDENT

  1. On 31 December 2020, at around 5.15am, the complainant went with his family to Likuliku Island Resort for New Year’s celebration. Prior to leaving, he securely closed all windows and locked the doors to his house.
  2. On 2 January 2021, on or about 4.15pm the complainant returned home and noticed that four louver blades in his sitting room were missing. The complainant searched around the house and discovered that some of his properties were missing.
  1. The missing properties were as follows:
    1. 1 x Sheffield Bluetooth Speaker;
    2. 1 x Under Armor Brand Bag; and
    1. 1 x HP Laptop.
  1. The Sheffield Bluetooth Speaker was stolen from the complainant’s sitting room, whilst the Under Armor Brand Bag and HP Laptop were stolen from his daughter’s room. The complainant then looked around the outside of his house, to which he learnt that the removed four louver blades were on the ground.
  2. The Complainant reported the matter to the Nakasi Police Station. Later, on the same day, DC 6099 Paul of the said Police Station was on day-shift duties. He saw you walking along Vishnu Deo Road carrying a Bluetooth Speaker. DC 6099 Paul felt suspicious. He then called you and asked as to whom the Bluetooth Speaker belonged to, to which you stated that it was yours.
  3. DC 6099 Paul then called the complainant to come into the Police Station and identify the Bluetooth Speaker. The complainant positively identified the said property as his. Then you were formally arrested and interviewed under caution, in the presence of your elder sister, Eseta Moceica.
  4. You admitted that that you committed the alleged offence of Aggravated Burglary and Theft with another iTaukei boy, Paul to break into the complainant’s house at Valili Street, Nakasi. You also confessed that you removed four louver blades from the window of the complainant’s house and stole the Sheffield Bluetooth Speaker. These admissions are captured at questions and answers 60 to 124.
  5. According to you, your accomplice told you that he got a laptop from the house on the day of the alleged incident.
  6. That none of the stolen items other than the Sheffield Bluetooth Speaker was recovered.
  1. That you committed the act in the company of another; under the principle of joint enterprise, the culpability of both you and the other would be the same.
  2. That you were accordingly charged and you pleaded guilty to the first count of Aggravated Burglary contrary to section 313 (1) (a) of the Crimes Act, 2009 and the second count of Theft contrary to section 291 (1) of the Crimes Act, 2009.
  3. Upon duly considering the summary of facts read by the State Counsel which was understood and admitted by you and also upon perusing the caution interview this court is further satisfied that you did enter unequivocal pleas of guilt on your own freewill.
  4. This Court is also satisfied that you did fully understand the nature of the charges and the consequences of so pleading guilty. The summary of facts read and admitted covers and satisfies all the elements of the offences of Aggravated Burglary and theft as charged by counts 1 and 2 respectively which you admitted as having committed.
  5. In view of the aforesaid, this Court finds the accused guilty of counts 1 and 2 as charged. Both counsel filed comprehensive sentence/punishment and mitigation submissions which this court is grateful.
  6. The tariff as determined by the in State v Seru, Sentence [2015] FJHC 528 HAC 426.2012 (6 July 2015) and also reiterated by the Court of Appeal in Daunivalu v State [2020 FJCA 127; AAU138.2018 (10 August 2020) for the offence of Aggravated Burglary is 18 months to 3 years which carries a maximum penalty of 17 years imprisonment.
  7. The tariff as determined by Waqa v State, Sentence [2015] FJHC 72 HAA017.2015 (5 October 2015) for the offence of Theft is 4 months to 3 years which carries a maximum penalty of 10 years imprisonment.
  8. Section 17 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”), reads thus;

“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. The two offences you are found guilty 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 for the two offences.
  2. The items of property stolen property will be regarded as factors that would aggravate your offending.
  3. Your counsel had submitted that you are 17 years of age and as at present employed as a Mechanic Assistant.
  4. That you are a first offender and you were persuaded by peer pressure and the other co-juvenile to commit this offence. It is submitted that now you sincerely regret your actions and you are willing and promise to reform.
  5. You have accepted responsibility to your actions and did save the court’s time by pleading guilty at the earliest opportunity. You have cooperated with the police too.
  6. Having considered all the facts before this court including the fact that you have committed a serious offence against property under Part 16 of the Crimes Act, and the fact that the offences against property are prevalent in the country and the number of young offenders brought before the courts for committing such offences appear to be quite significant and it is necessary to impose a term of imprisonment in this case as it would otherwise send a wrong message to the society.
  7. You have spent only one day in custody in relation to this matter.
  8. Whereas, I have decided to consider the firm undertaking given and promise you have made to reform to this court that you will lead a good life, I would consider suspending your punishment in terms of the provisions of section 26(1) of the Sentencing and Penalties Act.
  9. However, Section 30 (2) and (3) of the Juvenile Act;restricstricts and places an upper cap of a maximum term of two years imprisonment for a juvenile offender. Therefore, the court in sentencing juvenileenile ef="http://www.paclii.olii.org/cgi-bin/sinodisp/fj/cases/FJHC/2021/78.html?stem=&synonyms=&query=Sentencing%20juvenile#disp2" title="\">"0" >& offender for crimes of this nature, is required to consider the seriousness of the offences of this nature as well be mindful as the intention and object of the legislature in limiting a term of imprisoned to two years whenoffender is a juvenile.
    .
  10. In selecting a starting point, this Courts is required to have regard to the objective seriousness of the offence. I have considered the culpability and the harm factors of your offending. Evidence led in trial shows that a degree of pre-planning was involved in your offending. You have entered the residential house of the Complainant and acted in utter disregard of his property rights. Upon considering the gravity and objective seriousness of the offence, to my mind it is reasonable and just to take 18 months’ imprisonment as the starting point the count of Aggravated Burglary being the most serious offence.
  11. I observe the following aggravating circumstances of your offending.
    1. The act was preplanned,
    2. It was committed in the night when the complainant was not at home and that you have entered the hose removing louvers.
    3. It was committed against the property rights of the complainant.
  12. I have also considered following mitigating circumstances that your Counsel has submitted to this Court.
    1. Said to be truly remorseful and seeks forgiveness.
    2. Being co-operative with the police.
    3. He was 16 years of age at the time of the incident.
    4. He is a first-time offender.
    5. Pleaded guilty at the first opportunity.
    6. You have no previous convictions.
  13. I am inclined to add 1 year to the starting point for the above-mentioned aggravating factors bringing the interim sentence to 2 year 6 mdnths’ i17; imprisonment. I similarly deduct 6 months for the mitigating factors to bring the sentence down to on2 yea217; sonmentnment. This brings the sentence within the limitation prescribed by s by sectioection 30 (2) and (3) of the Juvenct
  14. The Defence Counsel hasitted that this is a fit matter for the Court to consider acting under section 26(2) of thef the Sentencing and Penalties. Act. The prosecution had no objection to this application.
  15. As per Section 26(2) of the Sentencing and Penalties Act, the discretion to suspend a sentence should only be exercised by a High Court where the custodial sentence does not exceed 3 years and as opined in the Sentence Ruling in ate v Aiding Zhang [2017] HAC 061 if there beumstance which aich are exceptional.
  17. In the circumstances of his case, I am of the considered view that this is a fit case for a suspended sentence. Since the final sentence has not exceeded 3 years in this case, I now proceed to consider the application made on behalf of the offender for a suspended sentence.
  18. Thus, upon duly considering the material before me, I impose a punishment of 2 years imprisonment and suspend the same for a period of 5 years.
  19. The consequences of any violation of a suspended term is explained to the juvenile.
  20. You have 30 days to appeal to the Court of Appeal if you so desire.
  21. Certain typographical errors were observed by me at paragraphs 7, 11, 16, 18 and 20 of the typed ruling issued in the morning were corrected and this corrected version is re issued.

..........................................................
Justice K.M.G.H.Kulatunga


At Suva
21 March 2022


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


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