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State v Tuvou - Sentence [2022] FJHC 77; HAC112.2021 (28 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL DIVISION

CRIMINAL CASE NO. HAC 112 OF 2021

STATE

Vs

1. ISEI TUVOU
2. NATUSA ROKOSEBA CAMA
   

Counsels: Ms. Kantharia B - for State

Mr. Prasad K - for 1^st Accused

Mr. Varinava E - for 2^nd Accused

Date: 28^th February 2022

SENTENCE

1. ISEI TUVOU and NATUSA ROKOSEBA CAMA, you were jointly charged on following information with one count of failure to comply with Public Health Orders, one count of Aggravated Burglary and one count of Theft:
   

COUNT 1

Statement of Offence

Failure to Comply with Orders: Contrary to section 69 (1) (c) and Section 69 (3) (v) of the Public Health Act 1935 and Section 2 of Public Health [Infectious Diseases] Regulations 2020.

Particulars of Offence

ISEI TUVOU and NATUSA ROKOSEBA CAMA on the 19^th day of March, 2021 at Nadali village, Nausori, in the Eastern Division, without lawful excuse, failed to comply with an order of the Permanent Secretary for Health and Medical Services namely breached the curfew hours which were set in place for the protection of public health.

COUNT 2

Statement of Offence

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

Particulars of Offence

ISEI TUVOU and NATUSA ROKOSEBA CAMA on the 19^th day of March, 2021at Nadali village, Nausori, in the Eastern Division, in the company of each other entered into the premises of ARUN SING as trespassers with the intention to commit theft therein.

COUNT 3

Statement of Offence

THEFT: Contrary to Section 291 of the Crimes Act 2009.

Particulars of Offence

ISEI TUVOU and NATUSA ROKOSEBA CAMA on the 19^th day of March 2021 at 2021 at Nadali village, Nausori in the Eastern Division, in the company of each other dishonestly appropriated 1 Hisense 9kg washing machine valued at $ 1,198.28, the property of ARUN SING with the intention n of permanently depriving ARUN SING of his property.

2. Both of you pleaded guilty on your own free will to the above mentioned counts when you were represented by a counsel. You understood the consequence of the guilty plea for offences you have committed. This Court was satisfied that the guilty pleas are informed and unequivocal and entered freely and voluntarily by both of you.
   
3. You agreed the following summary of facts, when they were read to you in Court on 18/02/2022. This Court is convinced that the facts agreed satisfy all the elements of each offence you are charged with. You were found guilty and convicted on each count as charged.
   
4. The summary of facts are, as follows:
   • The Accused in this matter are Isei Tuvou, 20 years of Age, Farmer of Nadali, Nausori. The 2^nd Accused is Natusa Rokoseba Cama, 20 years of age, unemployed of Nadali, Nausori. The complainant (PW1) is Arun Singh, 38 years of age, a Taxi Driver of Nadali, Nausori.
     
   • On 19^th March 2021, at around 3 am to 4 am, PW1 woke up from the sound of a container mat falling from the table outside. PW1 looked around inside his house and then looked outside to check whether his washing machine - Hisense brand 9kg TDP was outside or not. He saw that the washing machine was still there, so he went to sleep again till morning.
     
   • In the morning, when PW1 again checked the outside, he saw that his washing machine was missing. PW1 stated that the value of his 9kg Hisense washing machine is $1,198.28.
     
   • PW1’s wife then informed him that 2 louvre blades were removed from the window. PW1 then checked all the things in his house and found out that nothing else was missing from the house except for the washing machine. PW1 then called the Nausori Police Station and lodged his report of the missing washing machine.
     
   • One Praveen Sharma of Nayala Subdivision had provided shelter to one iTaukei youth, namely Cama, sometime in March to keep his compound clean. He gave his empty flat to this youth to stay and do work for him for free.
     
   • Pravin Sharma stated that after his few days of stay, he noticed that this iTaukei youth had bought a white Auto Washing Machine and when he asked the youth where he bought the same from, he informed Pravin Sharma that he bought it from his older brother who was separated from his family.
     
   • ISEI TUVOU (A1) admitted that he committed the alleged offence of Aggravated Burglary and Theft with another iTaukei boy, namely Natusa Rokoseba Cama (A2).
     
   • He also confessed that he and another lifted the washing machine from PW1’s house and walked with it to A2’s house which was around 1.00 am. He further admitted that it was during curfew hours when they committed this offence. This admissions are captured (at Q&A 28 to 80) in the record of interview of A1.
     
   • A2 also admitted that he committed the alleged offence of Aggravated Burglary and Theft with another iTaukei boy, namely Isei Tuvou. He further confessed that he and another lifted the washing machine from PW1’s house to the house they are staying in Nadali at around 3 am to 4 am. These admissions are captured at (Q & A 35 to 55) in the record of Interview of A2.
     
   • The Hisense 9kg washing machine was recovered by the Police from the place of both A1 and A2 were sheltering.
     
5. In considering this Summary of Facts, this Court notices an inconsistency in the time this offence had been committed in the admissions of both of you, where A1 mentions that the item in question was taken away from PW1’s house at 1.00 am and A2 mentions that it was takeaway between 3.00 am to 4.00 am. If not for the confusion in relation to the time, all the other facts in relation to the burglary are consistent. Further, you have pleaded guilty to the charge and the fact of commission of this offence by both of you have been established by other circumstantial evidence, like recovery of the stolen item from the place where both of you resided. Therefore, this Court is convinced that having a confusion between your admissions with regard to the time of commission of the offence does no harm your admission of guilt.
   
6. In comprehending the gravity of the offences you have committed, I am mindful that the maximum punishment for the offence of failure to comply with a Health Order under Section 69 (1) (c) and Section 69 (3) (v) of the Public Health Act 1935 and Section 2 of Public Health [Infectious Diseases] Regulations 2020 is a fine not exceeding $ 10,000 or imprisonment for a term not exceeding 5 years or both.
   

For Aggravated Burglary under Section 313 (1) (a) of the Crimes Act of 2009 the punishment is an imprisonment term of 17 years and the maximum punishment for Theft under Section 291 of the Crimes Act 2009 is an imprisonment term of 10 years.

7. However, thought there is no tariff as yet for the breach of a public health order, this Court needs to inform you that these Public Health Orders came into existence, since Covid-19 did immense damage to our society, where it took away so many innocent lives and brought our vibrant economy based on tourism to a standstill. Considering the impact of this virus, every citizen with commonsense had a responsibility to abide by these Health Regulations, which were imposed for our own good. However, for the purpose of committing the other two offences detailed in your information sheet, you knowingly violated the Health Order imposed by the Department of Health.
   
8. The tariff for counts 2 and 3 depend on the nature and circumstances under which Aggravated Burglary and Theft were committed, and the consequences entailing the commission of the offence to the victims and public in general.
   
9. Reading the literature and the available cases on tariff for Aggravated Burglary in our jurisdiction, this Court notices that a higher tariff proposed in the case of State v Naulu [2018] FJHC 548 (25^th June 2018) has led to many confusions and reasonable disappointment in many litigants of the existing discrepancy in the tariff. However, this Court also recognizes the alarming increase in Burglaries and Robberies in our community and the need for any punishment imposed by Court to have a reprehensible deterrent effect that could also send a profoundly strong signal to the community.
   
10. In taking cognizance of the comment of the Court of Appeal in the case of Daunivalu v State [2020] FJCA 127; AAU 138.2018 (10 August 2020), where it stated:

“......When an existing sentencing regime is changed by a single judge unilaterally, only to be followed not by all but a few other judges, a serious anomaly in sentencing is bound to occur undermining the public confidence in the system of administration of justice.”

As a consequence, this Court intends to follow the tariff regime pronounces for Aggravated Burglary in the case of State v Seninawanawa [2015] FJHC548 925 June 2018), where Midigan J states:

“The accepted tariff for aggravated burglary is a sentence of between 18 months and three years, with three years being the standard sentence for burglary of domestic premises.”

11. This tariff has been followed in several decided cases, i.e., State v. Tavualevu [2013] FJHC 246; HAC 43.2013 (16 May 2013); State v.Drose[2017] FJHC 205; HAC 325.2015 (28 February 2017); State v. Rasegadi & Another [2018] FJHC 364; HAC 101.2018 (7 May 2018) and State v. Mudu [2020] FJHC 609; HAC 116.2020 (30 JULY 2020).
    
    12. In relation to the offence of Theft, this Court intends to follow the tariffs pronounced by Midigan J in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1^st August 20120. Where he states:
        

“From the cases then the following sentencing principles are established:

(i) for a 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.

Although the higher tariff is apposite for breach of trust thefts of large amounts of money, thefts of sums of money from an employer by way of fraud that come within the Barrick 81 CrApp R(S) 78 guidelines, as developed by this Court in Anand Kumar Prasad and ors [2011] FJHC 218.”

13. In this matter, although state has informed Court that you were first offenders, in considering the value of the item you had stolen and that it was stolen from the residence of PW1, this cannot be regarded as simple theft. Further, you had pre-planned this offence, where you have entered the premises of PW1 when he and his family were sleeping in the night.
    
14. Considering the circumstances of this case, Court sees that this is an appropriate case where an aggregate sentence could be imposed in terms of Section 17 of the Sentencing and Penalties Act 2009 in view that you were convicted on each count based on the same facts. Hence, I would impose an aggregate sentence for both of you for Count 2 & 3. Both of you are similarly situated as far as the culpability level is concerned. The property stolen is discovered.
    
15. In assessing the objective seriousness of offending of the two of you in this matter, I considered the maximum sentence prescribed for the offence, the degree of culpability, the manner in which you committed the offence and the harm caused to the complainant. I gave due cognizance to the sentencing guidelines stipulated in Section 4 of the Sentencing and Penalties Act 2009. This is a Burglary that happened in the night when the community you live in were at sleep. I am very mindful that offences of this nature disturbs the peace and tranquility of mind of our citizens. In this regard, the Courts have a duty to discourage and deter this kind of anti-social behavior that makes living in our society unsafe. Having considered these factors, I would pick a starting point of 36 months for each of you.
    
16. Further, it has been brought to the attention of Court that both of you have two other pending cases of similar nature to this matter in the Nausori Magistrate’s Court under extended jurisdiction of the High Court. As such, this Court is mindful that the state is currently utilizing resources to ascertain the criminality of you conduct in relation to other matters happened together with this matter, but this will not be considered as a ground for aggravation of your sentence.
    
17. In mitigation, the defense counsel has informed Court that both of you were just over 21 years at the time of commission of this offence. That both of you were first and young offenders and have maintained a good character before the involvement in this offence. In consideration of the age of the 2 of you, your rehabilitation potential is very high. Therefore, I intend to consider your rehabilitation potential and this should be balanced with deterrence and community protection. In this regard, court wish to inform you that you have an entire future ahead of you and you’re expected to manage your conduct with responsibility and not tarnish your future.
    
18. 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 supportive to the police during investigations after your arrest. By pleading guilty to the charge you have saved court’s 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 one third (12 months) in your sentence.
    
19. The prosecution brings to the attention of this Court that ISEI TUVOU has been in custody since your arrest on 06/04/2021 to 03/08/2021 amounting to 119 days (3 months 28 days) and NATUSA ROKOSEBA CAMA has been in custody since your arrest on 06/04/2021 till today, amounting to 328 days (10 months 24 days), which periods should be deducted from your sentence separately.
    
20. Taking all these factors into consideration, Mr. ISEI TUVOU, I impose a fine of $ 300 on you for Count 1, to be paid in two (02) months with a default term of 30 days imprisonment under Section 37 (1) of the Sentencing and Penalties Act of 2009 and for Counts 2 & 3, I sentence you to 21 months and 02 days imprisonment. Further, with the authority given to this Court by Section 26 of the Sentencing and Penalties Act of 2009, in considering your young age and potential you have in realizing the mistake done and becoming a law abiding citizen, your sentence is partially suspended, where you shall serve nine (09) months and 02 days of your sentence forthwith, and the remaining period of 12 months is suspended for three years.
    
21. If you commit any crime punishable by imprisonment during the above operational period of three (3) years and found guilty by the Court, you are liable to be charged and prosecuted for an offence according to Section 28 of the Sentencing and Penalties Act of 2009.
    
22. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    
23. Mr. NATUSA ROKOSEBA CAMA, I impose a fine of $ 300 on you for Count 1, to be paid in two (02) months with a default term of 30 days imprisonment under Section 37 (1) of the Sentencing and Penalties Act of 2009, and for Counts 2 & 3, I sentence you to 13 months and 06 days imprisonment. Further, with the authority given to this Court by Section 26 of the Sentencing and Penalties Act of 2009, in considering your young age and potential you have in realizing the mistake done and becoming a law abiding citizen, your sentence is partially suspended, where you shall serve one (01) month and 06 days of your sentence forthwith, and the remaining period of 12 months is suspended for three years.
    
24. If you commit any crime punishable by imprisonment during the above operational period of three (3) years and found guilty by the Court, you are liable to be charged and prosecuted for an offence according to Section 28 of the Sentencing and Penalties Act of 2009.
    
25. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    

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

Justice Dr. Thushara Kumarage

At Suva

28^th February 2022