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State v Luveitasau [2022] FJHC 175; HAC076.2021 (7 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Crim. Case No: HAC 76 of 2021


STATE


vs.


  1. SAULA LUVEITASAU
  2. D.C.P. [JUVENILE]

Counsel: Ms. M. Naidu for the State
Mr. K. Chang for 1st Accused
Ms. T. Kean for Juvenile

Date of Sentence/Punishment: 07th April 2022


SENTENCE/PUNISHMENT


(Name of the Juvenile is suppressed and will be referred to as “D.C.P.” or the Juvenile)

  1. The 1st Accused and the Juvenile were charged with the following offences as per the consolidated information filed by the Director of Public Prosecutions dated 8th April1:

SAULA LUVEITASAU and D.C.P. are charged with the following offences;


COUNT ONE

Statement of Offence

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


Particulars of Offence

SAULA LUVEITASAU and D.C.P. on the 7th day of March, 2021 at River Road, Narere, in the Central Division, in the company of each other entered into the dwelling house of RONALD CHAND 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

SAULA LUVEITASAU and D.C.P. on the 7th day of March, 2021 at River Road, Narere, in the Central Division, dishonestly appropriated a rice cooker, 2 pairs of addidas sneakers, 1 x addidas sports bag, 1 x total brand boot, the properties belonging to RONALD CHAND with intent to permanently deprive RONALD CHAND.


  1. On 07th of January 2022, the 1st Accused and the Juvenile have pleaded guilty to the above stated counts 1 and 2 separately in the presence of their respective Counsel. Then on 23rd of March, 2022 read the summary of facts was read and explained to the 1st Accused and the Juvenile in the ITaukei language which both of them admitted.
  2. The facts You so admitted are as follows;
    1. The Accused – Saula Luveitasau, 22 years old at the time of the offending and currently 23 years old, unemployed of Volavola Settlement, Navosai (hereinafter also referred to as “A1”). DOB – 22/02/1998.
    2. The Juvenile – D.C.P., 17 years old at the time of offending and currently 18 years old, Unemployed of Lot 49 Stage 3, Narere (hereinafter also referred to as “J1”). DOB – 22/08/2003.
    3. The Complainant: Ronald Chand, 26 years old, employed at Foods Pacific Limited, of River Road, Narere (hereinafter referred to as “PW1”).
    4. PW2: Asinate Vonowale Tiko, 33 years old, employed at Harrisons, of Volavola Settlement, Navosai.
    5. Relationship: Nil.
    6. PW1 resides at River Road Narere with his brother namely Roneel Chand.
    7. On the 7th of March, 2021 at around 7pm, PW1 was at his residence with his brother Roneel Chand. PW1 stated that when he came out of shower, he saw the beer bottle that was placed on the kitchen counter was on top of the table in the storeroom.
    8. When PW1 entered the sitting room, he saw one of the drawers was open and the other was on the floor. After having a look around his house, PW1 found that some things were missing.
    9. Upon investigation, it was found out that A1 and J1 in the company of each other entered into the house of PW1 with intent to commit theft therein.
    10. That on the 7th of March, 2021 at around 7pm at PW1’s residence, A1 and J1 in the company of each other dishonestly appropriated the following properties belonging to PW1 with intention to permanently deprive PW1 of the said property.
    11. The items stolen from PW1’s house are:
      1. One rice cooker valued at $120
      2. 2 x Addidas sneaker valued at $180 each pair
      3. Addidas sports bag color black containing cloths valued at $200
      4. 1 x safety boot valued at $100

TOTAL VALIUE: $780.00

  1. PW1 described the rice cooker to have pink flower pictures on its sides, so it was a white rice cooker with pink flower pictures. One of the stolen addidas sneakers was black with black stripes and the other one was blue with blue stripes. The safety boot was grey and blue in color and was a Total brand.
  2. During the investigation, PW2 made a statement wherein she stated that on 7th March, 2021, she saw 2 i-Taukei youths whom she described by the name Don (J1) and Saula (A1) residing at Volavola Settlement.
  3. PW2 stated that she saw J1 and A1 go towards River road at about 7pm. She further stated that at around 7.45pm, PW2’s husband Abdul Saiyad came back from prayer and informed PW2 that there was a house break in River Road, Narere and after that both PW2 and her husband went to check PW1’s house.
  4. PW2 went out of her house and she saw A1 ran past the house and J1 was walking from the back carrying a white rice cooker with pink flower prints on its side. PW2 said when she saw J1, J1 was acting in a suspicious manner.
  5. Later when PW2 arrived at PW1’s house, she found out that a rice cooker was stolen from PW1’s house. The same rice cooker that had pink flower prints on the side.
  6. Matter was reported to the police at Nasinu Police Station and investigations were carried out wherein J1 and A1 were both arrested and escorted to the Nasinu Police Station.
  7. A1 was interviewed under caution at the Nasinu Police Station by DC 4983 Inoke whereby A1 admitted to committing the alleged offence in the company of J1.

Caution Interview Statement of A1

A1 made full admission whereby he stated that:

  1. A1 admitted that he saw PW1’s house was open so J1 entered first and then both of them entered the house through the main door. – Q & A 42 – 44.
  2. A1 admitted to stealing 1 x rice cooker, 2 x canvas and 1 x addidas sports bag. – Q & A 45.
  3. A1 further admitted to selling the stolen properties to one i-Taukei lady and threw the bag away on the road beside New World Complex – Q & A 47-51.
  4. A1 admitted that he had received the money after selling the stolen properties and had used the same to buy marijuana, joske brew alcohol and cigarettes. – Q & A 52.
  5. A1 also showed the police how he entered the house during the reconstruction.
  6. A1 was showed the recovered items and he admitted that those were the items he had stolen from PW1’s house.
  7. A1 admitted to committing the alleged offence. – Q & A 53

A copy of the Record of Interview A1 was marked ‘PE1’ with the summary of facts.

  1. J1 was interviewed under caution at the Nasinu Police Station by DC Samuela Dakuitoga whereby J1 admitted to committing the alleged offence in the company of A1.

Caution Interview Statement of J1

J1 made full admission whereby he stated that:

  1. J1 admitted that he was with A1 on the day of the alleged incident and they broke into the Complainants house. – Q & A 12-17
  2. J1 admitted that he and A1 entered the house to steal whereby J1 acted as a watchman outside – Q & A 18.
  3. J1 admitted they had stolen the rice cooker, 2 addidas sneaker, safety boot and black addidas bag. –Q & A 19.
  4. J1 admitted that their intention was to steal the items, sell and get money – Q & A 25.
  5. J1 admitted that he had given all the stolen items to his accomplice – Q & A – 22.
  6. J1 admitted that he was wearing a brown strips shirt with ¾ brown pants at the time of the offence – Q & A – 28.

A copy of the Record of Interview J1 was marked as ‘PE2’ with the summary of facts.

  1. Both A1 and J1 were taken to PW1’s house for reconstruction of the scene whereby they showed how they had entered PW1’s house to steal properties belonging to PW1.
  2. The recovered items are as follows:
    1. 1 x black sports bag valued at $200.00
    2. 1 x black addidas sneakers valued at $180.00
    3. 1 x Total brand safety boot valued at $100.00
  3. The accused and juvenile are charged and has pleaded guilty to one count of Aggravated Burglary contrary to section 313 (1) (a) of the Crimes Act 2009 and one count of Theft contrary to section 291 (1) of the Crimes Act 2009.
  4. The accused had known but nil previous conviction and the juvenile is a first offender.
  5. That you the Accused and the Juvenile were accordingly charged and both of 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.
  6. Upon duly considering the summary of facts read by the State Counsel which was understood and admitted by both of you and also upon perusing the caution interviews this court is satisfied that you the Accused and the Juvenile did enter unequivocal pleas of guilt on your own freewill.
  7. This Court is also satisfied that you the Accused and the Juvenile 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 both of you admitted as having committed.
  8. In view of the aforesaid, this Court finds the 1st Accused and the Juvenile separately and individually guilty of counts 1 and 2 and convicts the 1st Accused in respect of the said counts 1 and 2 as charged.
  9. Both your Counsel and the State Counsel filed comprehensive submissions on sentence/punishment and mitigation which this court is grateful.
  10. The tariff as determined by 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.
    1. 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. In Mikaele ili v. Statee, Criminal Appeal No. HAA 011 of 2012 (1 August, 2012) Madigan J. se the tariff foff for theft considering various factors in tllowing form:

8220#8220;(i) Fo) For the first offence of simple theft the sentencing range should be be 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.”


  1. 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 counts of Aggravated Burglary and theft for which both of you have been found guilty and the 1st Accused was convicted are offences founded on the same facts and are of similar character. In accordance with section 17 of the Sentencing and Penalties Act, I consider it just and appropriate to impose an aggregate sentence/punishment for both those offences having the Aggravated Burglary count as the base sentence as it is the more serious of the two offences.
  2. 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. Both of you have entered the residential house of the Complainant and acted in utter disregard of his property rights. Then you have committed serious offences against property under Part 16 of the Crimes Act, and this type of offences are prevalent in the country and the number of young offenders brought before the courts for committing such offences appear to be quite alarming and significant. Upon considering the gravity and objective seriousness of the offences, to my mind it is reasonable and just to pick 18 months’ imprisonment as the starting point of the aggregate sentence of the Accused and the aggregate punishment of the Juvenile. However, the final sentence/punishment will depend on the mitigating and aggravating factors which I will consider next.
  3. First, I will consider the aggravating factors. I observe the following aggravating circumstances of your offending common to both of you the Accused and the Juvenile:
    1. Around 7.00 p.m. both of you entered the property of the complainant and you were bold and undeterred.
    2. This is an opportunistic theft. You went into the house of the victim upon seeing the door being kept open as you saw no one inside, quickly entered the house stole the items and got away.
    3. It was committed against the property rights of the complainant and the valuable items were not recovered.
  4. I am inclined to add 1 year and 6 months to the starting point for the above-mentioned aggravating factors bringing the interim sce to 3 years’ 217; imprisonment
  5. As the mitigating rs an sentencing regimes and considerations applicablecable to Juveniles are different, from thim this point onwards I will proceed to craft the sentence and punishment of both of you separately. First let’s consider the punishment of you D.C.P. the Juvenile and then the sentence of the Accused.

Punishment of D.C.P, the Juvenile


Section 30 (2) and (3) of the Juvenile/b> restricstricts and places an upper cap of a maximum term of two years imprisonment for a juvenile offender. Therefore, the court in crafting the punishment juva juvenile offenders fimes of this this natu required to consider the sthe seriousness of the offence/s and also be mindful of the said two-year limitation of imposed by the legure.

  1. I will consider the following circumstances as mitigating factors submitted on behalf of the Juvenile, that you;
    1. are truly remorseful and seeks forgiveness,
    2. co-operated with the police,
    3. were 17 years of age at the time of the offending,
    4. are a first offender,
    5. pleaded guilty at the outset on the first opportunity,
    6. You have no previous convictions.
  2. I think it to be just to deduct 1 year and 6 months for the said mitigating factors and the punishment will be 1 year and 6 months’ imprisonment. Thus, now the punishment has come within the limitation prescribed by section 30 (2) and (3) of the Juvenile Act.
    >
  4. D.C.P, your counsel submitted that you were a school drop-out at F and you were 17 years of age at the time of the offending ding and was farming with an income of about $100 per week. Further, that you are a first offender and due to a lapse of judgment you joined the 1st Accused in this offending. It is submitted that now you sincerely regret your actions and you are willing and promise to reform and not to re-offend. You have accepted responsibility to your actions and did save the court’s time by pleading guilty at the earliest opportunity. That you have cooperated with the police too.

Suspending the punishment


  1. Your Counsel submitted that this is a fit matter for this Court to consider acting under section 26(2) of the Sentencing and Penalties. Act especially as you are a juvenile offender. The prosecution had no objection to this submission. I am of the view that the firm undertaking and promise made to this court that you will rehabilitate and reform and you will lead a good life and to continue with your education, that there are sufficient rounds to consider suspending your punishment in terms of the provisions of section 26(1) of the Sentencing and Penalties Act.
  2. As per Section 26(2) of the Sentencing and Penalties Act, the discretion to suspend a sentence/punishment should only be exercised by a High Court where the custodial sentence/punishment does not exceed 3 years and as opined in the Sentence Ruling in State v AiZhang [2017] HAC 061 if there rcums whic excepticeptional.
  3. IDPP v Jolame Pita (1974) 20 FLR 5 at p.7:, Grant Acting CJ (as he was then) explained wned what special circumstances that warrant and justify the suspension of a sentence thus;

"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. In the circumstances of this case especially considering the extreme youth or age of the offender who is a first-time offender with no other pending similar matters, I am of view that this is a fit case for a suspended the punishment of the Juvenile as the final punishment does not exceed 3 years.
  2. Thus, upon duly considering the material before me, I impose a punishment of 1 year and 6 months’ imprisonment and suspend the same for a period of 5 years.

The sentence of the 1st Accused


  1. As determined above taking 18 months’ imprisonment as the starting point of the aggregate sentence and adding 1 year and 6 months for the aggravating factors brings the interim senten60;to 3 years’ 217; imprisonment.

Mitigating factors

  1. The personal circumstances and family background ound of the accused has little mitigatory value. However, I note that the accused has no previous convictions and is a young offender.
  2. Further, your counsel has informed the court that you have entered an early guilty plea and that you regret your action on the day in question. You have also been cooperating with the police during investigations after your arrest. The Court is mindful of the early admission of guilt by you as a mark of genuine remorse. You by pleading guilty to the charge you have saved court time and resources at a very early stage of the court proceedings. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of 1 year and 6 months from your sentence brings your sentence down to one (1) year and six (6) months’ imprisonment.
  3. Your submissions and the Antecedent Report reveal that there is a pending similar matter against the 1st Accused. Though I have acting under section 26(2) of the Sentencing and Penalties Act suspended the punishment of the Juvenile I am unable to act in the same manner in respect of you the 1st Accused, as the special circumstances considered in respect of the Juvenile namely the extreme youth or age of the offender and first-time offender with no other pending similar matters is not there in the same manner to justify the suspension of your sentence.

Non-parole period


  1. Under section 18 (1) of the Sentencing and Penalties Act (as amended), a non-parole period will be imposed to act as a deterrent to the others and for the protection of the community as well. On the other hand, this court cannot ignore the fact that the accused whilst being punished should be accorded every opportunity to undergo rehabilitation.
  2. Considering the above, I impose 14 months as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused and also meet the expectations of the community which is just in the circumstances of this case
  3. I also note from the court file and the submissions in mitigation that the accused has been in remand since 08th March 2021 up to date for 1 year 23 days. In the exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 13 months as a period of imprisonment already served. In view of the above, the final aggregate sentence will be 05 months’ imprisonment.
  4. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed compels me to consider the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.

Head Sentence

  1. Accordingly, I sentence you the 1st Accused for a period of 1 year and 6 months’ imprisonment as an aggregate sentence for the counts of Aggravated Burglary and theft as charged in the information. Moreover, you are not entitled to parole for 14 months pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Actual Period of the Sentence of the 1st Accused

  1. You have been in remand custody for this case for nearly 13 months before the sentence as the Court did not grant you bail. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider 13 months as a period of imprisonment that you have already served.
  2. Accordingly, the actual sentencing period is five (05) monthsimprisonrisonment with a non-parole period of one (01) month
  3. ORDERS
    1. The 1st Accused is sentenced to five (05) months imprisonment as an aggregate sentence for both the offences with a non-parole period of one (01) month and
    2. The Juvenile is punished with 1 year and 6 months’ imprisonment as an aggregate punishment for both offences which is suspended for 5 years.
  4. The effect and the consequences of any violation of a suspended term are explained to the juvenile.
  5. You have 30 days to appeal to the Court of Appeal if you so desire.

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


At Suva
07 April 2022


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

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