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State v Roraqio - Sentence [2022] FJHC 198; HAC330.2020 (2 May 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

Crim. Case No: HAC 330 of 2020

STATE

vs.

SUNIA RORAQIO

Counsel: Ms. B. Kantharia with Ms. A. Devi for the State

Accused In Person

Date of Hearing: 19^th and 21^st April 2022

Date of Closing Submission: 26^th April 2022

Date of Judgment: 29^th April 2022

Date of Sentence/Mitigation Submission: 29^th April 2022

Date of Sentence: 2^nd May 2022

SENTENCE

Introduction

1. The Accused was charged with one count of Aggravated Burglary, contrary to Section 311 (1) (a) of the Crimes Act and two counts of theft contrary to Section 291 (1) of the Crimes Act. By the judgment delivered on 29^th April 2022, the Accused Sunia Roraqio was found guilty and convicted of all three counts as charged the particulars of which are as shown below;

COUNT ONE

Statement of Offence

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

Particulars of Offence

SUNIA RORAQIO with others, on the 31^st day of August, 2020 at 248 Princess Road, Tamavua in Central Division, entered into the property of KOI PING LEE as trespassers, with the intention to commit theft therein.

COUNT TWO

Statement of Offence

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

Particulars of Offence

SUNIA RORAQIO with others, on the 31^st day of August, 2020 at 248 Princess Road, Tamavua in Central Division, in the company of each other, dishonestly appropriated assorted food items, 1 x pair of shoes and $20.00 cash, the property of KOI PING LEE with the intention of permanently depriving KOI PING LEE of his properties.

COUNT THREE

Statement of Offence

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

Particulars of Offence

SUNIA RORAQIO with others, on the 31^st day of August, 2020 at 248 Princess Road, Tamavua in Central Division, in the company of each other, dishonestly appropriated 1 x Microsoft surface 3 laptop in colour blue and black, approximately $200 AUSD and 1 x iPhone 5S the property of JASON LEE with the intention of permanently depriving JASON LEE of his properties.

2. It was proved at the hearing that the Accused, together with others, entered the property of Koi Ping Lee at 248 Princess Road, Tamavua in Central Division between 11.45 and 12.05 midday of the 31^st of August 2020. The Accused with others so entered the residential house of the complainants during the day when the inmates were out engaged in their business and stolen the items referred to in the particulars of counts 2 and 3 of the information.
   
3. The offence of burglary involves entering or remaining in a premises as a trespasser with the intention to commit theft of anything in the premises. To be guilty of the offence, it is sufficient to enter the premises with the relevant intention. The offence is committed even if, once inside the premises, the person does not actually carry out the additional intended offence involving theft, The offence of Aggravated burglary for which the Accused was convicted occurs if, at the time of the burglary, the offender is in the company of one or more other persons. The offence of Aggravated burglary has a maximum penalty of 17 years and the offence of theft has a maximum penalty of 10 years imprisonment.
   
4. Aggravated burglary is a preparatory offence, because it involves an act of entering a property with the intention to commit a further offence. If, once the person has entered the premises, he or she actually commits the intended offence involving theft, he or she would be charged and sentenced separately for both the offence of burglary and the offence of theft. Though aggravated burglary is a preparatory offence, in view of the maximum penalty, it is considered a serious offence in Fiji. Though this is an offence of a preparatory nature the gravity of aggravated burglary will depend on the manner and the nature of entering the premises.
   
5. The prevalence of burglary and home-invasion-style offences as in the present case will certainly cause great anxiety and disquiet in the community whilst undermining the sense of security that people feel in their own homes and will also bring about a sense of insecurity and inhibition to close up their houses and go about their daily errands and work freely. I find this is a very serious offence. Wherefore, it is my opinion that such offenders must be imposed with severe and harsh punishments. Thus, in sentencing for offences of this nature it is necessary to convey a message to offenders and to those who intend to offend that these crimes will not be tolerated and will entail stiff sentences. Therefore, the purpose of this sentence is founded on the principle of deterrence and the protection of the community. I am mindful of the principle of rehabilitation nonetheless the seriousness of these offences outweighs the principle of rehabilitation.
   
6. 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.
   
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. In Mikaele Ratusili v. State, Criminal Appeal No. HAA 011 of 2012 (1 August, 2012) Madigan J. set out the tariff for theft considering various factors in the following form:

“(i) For the first offence of simple theft the sentencing range should be between 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.”

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.”

9. The count of aggravated burglary and two counts of theft for which you have been 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 for all three offences having the Aggravated Burglary count as the base sentence as it is the most serious of the three offences.
   
10. Home invasion in the present case certainly would have required a prior knowledge of the general daily routine of the inmates of the house. Thus this is not an opportunistic offending but a well-planned burglary. The CCTV footage shows that the Accused along with others were executing a pre-planned and concerted break-in. Hence, I find that the level of culpability in this crime is also very high.
    
11. One of the intruders was armed with a car jack which was ostensibly used to break or make an opening on the grill. They have entered the house, and has ransacked the house with impunity. The items that were stolen were valuable and never found or recovered. These are aggravating factors. Given the seriousness of the offence, the level of harm and culpability of this offending and the aggravating factors, I find this is an appropriate case to consider the upper-mid range of the stipulated tariff.
    

Application to declare the Accused as a habitual offender

12. The learned Counsel for the Prosecution has made an application to declare the Accused as a habitual offender pursuant to Section 11 of the Sentencing and Penalties Act as he poses a threat to the community. (vide; para 5.5 of the submission).
    
13. Section 11 confreres a discretion upon this court to determine that the Accused is a habitual offender when sentencing him for one of the offences, as stated under Section 10 of the Sentencing and Penalties Act, if there are previous convictions for offences of like nature and the Court is satisfied that the Accused constitutes a threat to the community.
    
14. The offence of Aggravated Burglary is one of the offences listed under Section 10 of the Sentencing and Penalties Act. The accused is advisedly recorded with 13 previous convictions. 6 of them are for larceny(2), robbery with violence, Aggravated Burglary and theft(2) being offences against property. The Accused admits in his written mitigation submission that he is at present serving a term of imprisonment. The accused had been convicted for all of these crimes against properties between 2005 and 2021. I observe that, Accused have only been able to refrain from further criminality upon release from prison for very short periods of time and thus has the propensity to reoffend. In these circumstances I am satisfied that the accused constitutes a threat to the community. Accordingly, I determine the accused a habitual offender.
    
15. As the Court has determined the accused a habitual offender, in this case, the Court can then consider the threat constituted by the accused in order to impose a longer sentence than the proportionate gravity of the offence. (vide Section 12 of the Sentencing and Penalties Act). Moreover, a sentence imposed on a habitual offender has to be served consecutively to the other remaining sentences, unless otherwise ordered by the court. (vide Section 13 of the Sentencing and Penalties Act).
    
16. As for mitigating circumstances, apart from stating that he was the sole bread winner of his family including his two children and the family backgrounds of the first accused I don’t find anything else in the written mitigation tendered by the Accused. The Accused claims that he is innocent despite the verdict which denotes a clear lack of remorse. The Accused submitted that he is currently serving a sentence and begs that this sentence be ordered to run concurrently.
    
17. Having considered the seriousness of the offence, the level of harm and culpability, the aggravating factors, and the threat constitutes to the society, I impose an aggregate sentence of seven (7) years imprisonment. The Accused is accordingly sentenced for seven (7) years imprisonment.
    
18. Having considered the seriousness of this crime, purpose of this sentence, and the age of the accused, I find five (5) years of non-parole period would serve the purpose of this sentence. Hence, you are not eligible for any parole for five (5) years pursuant to section 18 (1) of the Sentencing and Penalties Act.
    
19. In view of the remaining portion of the sentence that you have admitted to be presently serving and the totality principle in sentencing, I am inclined to order this sentence to commence and run concurrent to the remaining portion of the said sentence that you are presently serving. Once you have completed the remaining portion of that sentence you will have to serve and complete the remaining part of this sentence.

Head Sentence

20. Accordingly, Mr. Sunia Roraqio, I sentence you to a period of seven (7) years imprisonment as an aggregate sentence for the offence of Aggravated Robbery, and the two offences of theft. However, you are not entitled to parole for five (5) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Actual Period of the Sentence

21. You have been in remand custody for this case from 9^th November 2020 to 11^th March 2021 for four (4) months and two (2) days until you were granted bail. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider four (4) months as being a period of imprisonment that you have already served.
    
22. Accordingly, the actual sentencing period is six (6) years and eight (8) months imprisonment with a non-parole period of four (4) years and eight (8) months.
    
23. You have thirty days (30) to appeal to the Fiji Court of Appeal if you so desire.
    

..........................................................

Justice K.M.G.H.Kulatunga

At Suva

2^nd of May 2022

Solicitors

Office of the Director of Public Prosecutions for the State.

Accused in Person