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State v T.N.B [Juvenile One] [2022] FJHC 187; HAC104.2021 (20 April 2022)
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: HAC 104 of 2021
STATE
V
T.N.B [Juvenile One]
AND
T.V [Juvenile Two]
AND
N.V [Juvenile Three]
Counsel : Ms. S. Naibe for the State.
Ms. G. Henao for all the Juveniles.
Date of Submissions: 04 April, 2022
Date of Hearing : 06 April, 2022
Date of Punishment: 20 April, 2022
PUNISHMENT
(The names of all the juveniles are suppressed they will be referred to as “T.N.B”, “T.V” and “N.V”
respectively).
- All the juveniles are charged by virtue of the following information filed by the Director of Public Prosecutions dated 29th December, 2021:
[FIRST COUNT]
Statement of Offence
AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of the Crimes Act 2009.
Particulars of Offence
T. N.B, T.V and N.V between the 28th day of June, 2020 and 12th day of July, 2020 at Draunivi, Rakiraki in the Western Division, in the company of each other, entered as trespassers in the house
of ASHNIL KUMAR MOHAN, 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.N. B, T.V and N. V between the 28th day of June, 2020 and 12th day of July, 2020 at Draunivi, Rakiraki in the Western Division, in the company of each other, dishonestly appropriated (stole):
- 1 x Bluetooth stereo with speaker;
- 1 x Walesi modem;
- 2 x Fijian woven mats.
The properties of Ashnil Kumar Mohan with the intention of permanently depriving Ashnil Kumar Mohan of the said properties.
[THIRD COUNT]
Statement of Offence
THEFT: Contrary to section 291 (1) of the Crimes Act 2009.
Particulars of Offence
T. N. B, T. V and N. V between the 28th day of June, 2020 and 12th day of July, 2020 at Draunivi, Rakiraki in the Western Division, in the company of each other, dishonestly appropriated (stole):
- 1 x Dell Laptop;
- 1 x Imitation earrings;
- 1 x pair of 22 carat gold earrings.
The properties of Ashmita Devi with the intention of permanently depriving Ashmita Devi of the said properties.
- On 28th February, 2022 all the juveniles pleaded guilty to the above three counts in the presence of their counsel. Thereafter, on 28th March, 2022, all the juveniles admitted the summary of facts read by the state counsel as follows:
- The first complainant resides in Lautoka but his family house is in Draunivi, Ra. On the 28th of June, 2020, the first complainant had gone to check on his family house in Draunivi, Ra. After checking on the family house, he
securely locked the place and left around 3pm.
- Sometimes between the 28th of June 2020 and the 12th day of July, 2020, the juveniles noticed that the first complainant’s house was locked and planned to break into the house.
- One night between the dates mentioned the juveniles all met up and went to the first complainant’s house. Upon reaching the
first complainant’s house, the first juvenile removed the louvers from a window and entered into the house and the other two
juveniles entered after.
- The juveniles then stole the following items:
- 1 x Bluetooth stereo with speaker valued at $300.00;
- 1 x Walesi modem valued at $ 99.00;
- 2 x Fijian woven mats $ 55.00;
(property belonging to Ashnil Mohan)
- 1 x Dell laptop valued at $800.00;
- 1 x pair of imitation earrings $ 5.00;
- 1 x pair of 22 carat gold earrings valued at $160.00.
(property belonging to Ashmita Devi)
Total value of items stolen $1,419.00
- A complaint was lodged of the break-in after a boy by the name of Mikaele Namure tried to sell the stolen Dell laptop to a relative
of the complainants. Investigations were carried out and the three (3) juveniles were arrested.
- The first juvenile when caution interviewed in the presence of social welfare officer, Prem Kumar admitted that he entered through
a window of the house (Q&A 24) by removing the louver blades (Q&A 25). He further admitted that he had stolen the speaker,
mat and gold pendant (Q&A 31). (attached herewith is a copy of the first juvenile’s caution interview)
- The second juvenile when caution interviewed in the presence of his uncle, Naibuka Vude admitted to taking the louver blades off the
window and entering into the complainant’s house (Q&A 23-25). The second juvenile further states that while he was in the
house he stole a Walesi modem (Q&A 27). (attached herewith is a copy of the second juvenile’s caution interview)
- Lastly, the third juvenile when caution interviewed in the presence of Mikaele Nabure Vude admitted that they planned to break-in
to the complainant’s house (Q&A 25-26). The third juvenile further admitted that he entered the house and stole a laptop
from one of the rooms (Q&A 33-34). (attached herewith is a copy of the third juvenile’s caution interview)
- At the investigation stage, the following items were recovered:
- 1 x Dell Laptop;
- 1 x Walesi modem;
- 1 x Bluetooth stereo with speaker;
- 1 x pair of imitation earrings.
- After considering the summary of facts read by the state counsel which was admitted by all the juveniles and upon reading their caution
interviews, this court is satisfied that all the juveniles have entered an unequivocal plea of guilty on their freewill.
- 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. In view of the above, this court finds all the juveniles guilty as charged.
- The learned counsel for all the juveniles presented the following mitigation and personal details:
JUVENILE ONE – T.N.B
- The juvenile was 17 years at the time;
- First time in conflict with the law;
- Student;
- Pleaded guilty at the earliest opportunity;
- Remorseful and apologies for his actions;
- Cooperated with police during investigations;
- Resides with his mother and grandmother;
- Substantial recovery of stolen items;
- Regrets his actions.
JUVENILE TWO – T.V
- The juvenile was 15 years at the time;
- First time in conflict with the law;
- Year 9 student;
- Pleaded guilty at the earliest opportunity;
- Remorseful and apologies for his actions;
- Resides with his aunt;
- Cooperated with police during investigations;
- Substantial recovery of stolen items;
- Regrets his actions.
JUVENILE THREE – N.V
a) The juvenile was 15 years at the time;
b) First time in conflict with the law;
c) Year 11 student;
d) Pleaded guilty at the earliest opportunity;
e) Remorseful and apologies for his actions;
f) Resides with his aunt;
g) Cooperated with police during investigations;
h) Substantial recovery of stolen items;
i) Regrets his actions;
j) Resides with his parents.
TARIFF
- The maximum penalty of the offence of aggravated burglary is 17 years imprisonment.
- 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).
- For the offence of theft the maximum penalty is 10 years imprisonment.
- The tariff for the offence of theft is settled. In Mikaele Ratusili v. , Cre, Criminal Appeal no. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft as follows:
(ii) any subsequent offence should attract a penalty of at leas 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.”
- 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.
AGGRAVATING FACTORS
- The following aggravating factors are obvious:
- Property Invasion
The juveniles did not have any regard for the property rights of the owner. They were bold and undeterred in what they did without
any second thought.
- Planning
There is some degree of planning involved the juveniles saw the house vacant they got together and planned to break into the house
in the night.
SOCIAL WELFARE REPORT
- As per the order of this court the Social Welfare Department, Lautoka in particular Mr. N. N. Wara has prepared a pre-punishment report
for the second and the third juveniles for which this court is grateful. The reports recommend the following:
- Both the juveniles be given a second chance, a probation officer be appointed that increase the level of rehabilitation programs and
supervision;
- Both have parental and/or family support which is a positive sign for them;
- Both juveniles are remorseful and they understand the consequences of their actions which they do not wish to repeat; and
- Counseling and community supervisors will be of assistance to the juveniles.
PARENTAL VIEW/SUPPORT
- The grandmother of the first juvenile, the mother of the second juvenile Mereleki Waikini and both parents of the third juvenile Naibuka
Vude and Adi Tinai were present in court. The grandmother and parents take responsibility of what has happened they are sorry for
the actions of their grandson and sons. They are going to make sure both the juveniles are properly supervised and they do not repeat
what has happened.
- The parents of the second and third juveniles are willing to sign a bond of $300.00 each and they are also willing to compensate the
victim by paying $70.00 for each juvenile. Since the first juvenile is an adult now the grandmother of this juvenile is willing to
also compensate the victim by paying the sum of $70.00.
- All the juveniles 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
16. 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.”
- Taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate punishment
for the respective juveniles.
- Considering the objective seriousness of the offences committed I select 18 months imprisonment (lower range of the tariff) as the
aggregate punishment of the three offences. The punishment is increased for the aggravating factors and a reduction allowed for the
early guilty plea, mitigation and police custody.
- The final aggregate punishment for the two offences is 1 year and 10 months 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.
- In State lipate Sorovanalagnalagi and others, Revisional Case No. HAR 006 of 2012 (31 May 2012)ndar J. reiterated the foll following guidelines in respect of suspension of a sentence at paragraph 23:
“[23] In DPP v Jolame Pita (1204) R 5, Grant Actg. CJ . CJ (as he then was) held that in order to justify the imposition of
a suspended sentence, there must be factors rendering immediate imprisonment inappropriate. In that case, Grant Actg. 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."
- 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 are young persons as per the Juveniles Act, they are of good character, isolated offences were committed by them, they were 15 to 17 years of age respectively at the time of
the offending, pleaded guilty atearliest opportunity, are gare genuinely remorseful, cooperated with police and they take full responsibility
of their actions. These special reasons render immediate imprisonment inappropriate.
- I am sure all the juveniles with parental and family guidance, supervision and support haveight future ahead of them hence an imprisonment
term will nill not augur well for their future, the juveniles have been in police custody 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.
- 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.
- 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.
- 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 is because the Juveniles Act imposes a limit on the punishment of young persons.
- In summary the juveniles are given a punishment of 1 year and 10 months imprisonment as an aggregate punishment respectively for both
the offences which is suspended for 3 years. The effect of suspended sentence is explained. The following orders are to take effect
immediately.
ORDERS
- The juveniles are given a punishment of 1 year and 10 months imprisonment respectively as an aggregate punishment for the three counts
mentioned in the information which is suspended for 3 years with immediate effect;
- The parents or the next of kin of the second and third juveniles are to sign a good behaviour bond in the sum of $300.00 each. Furthermore,
the parents and the grandmother of the juveniles are to pay the sum of $70.00 for each juvenile as compensation to the victim within
14 days from today payable at the Magistrate’s Court nearest to them;
- The Social Welfare Department is to immediately arrange for the counseling of the second and third juveniles in the presence of their
parents with the view of assisting them in keeping out of peer group influence and to engage in education and training;
- The Social Welfare Department is also at liberty to work out any programs or plans which will be in the interest of the second and
third juveniles;
- It is the responsibility of the parents of both the juveniles to ensure that the juveniles obey any directions given by the Social
Welfare Department;
- The Social Welfare Department in consultation with the parents of the second and third juveniles are to appoint a probation or community
officers who can supervise or guide the second and the third juveniles;
- A copy of this punishment is to be served on the Officer inge of the Social Welfare Department;
- 30 days to appeal to the Court of Appeal.
Sunil Sharma
Judge
At Lautoka
20 April, 2022
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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