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State v Salauneune - Sentence [2024] FJHC 427; HAC324.2022 (9 July 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Crim. Case No: HAC 324 of 2022


STATE


v


1. PITA SALAUNEUNE
2. ALIVERETI COKANASIGA


Counsel: Mr. Z. Zunaid for the State
Ms. M. Tuiloma for the 1st Accused
Ms. L. Tavaiqia for the 2nd Accused




Date of Sentencing Hearing: 6 October 2023
Date of Sentence: 9 July 2024


SENTENCE


  1. Pita Salauneune (1st accused) and Alivereti Cokanasiga (2nd accused) are indicted with the offences of Count 1: Aggravated Burglary and Count 2: Theft, respectively contrary to sections 313(1)(a) and 291(1) of the Crimes Act 2009 as laid out in the Information dated 5 October 2022 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


PITA SALAUNEUNE & ALIVERETI COKANASIGA, in the company of each other, on the 30th day of August, 2022 at Nausori in the Eastern Division, entered into the property of MAUREEN EASTGATE & ALBERT HENRY EASTGATE, 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


PITA SALAUNEUNE & ALIVERETI COKANASIGA, in the company of each other, on the 30th day of August, 2022 at Nausori in the Eastern Division, dishonestly appropriated 2 x binoculars, 1 x Acer laptop with bag, 1 x Sketchers brand pair of canvas, 1 x Asics brand pair of canvas, 1 x orange in colour ladies bag and $14,140.00 cash (New Zealand Dollars), the properties of MAUREEN EASTGATE & ALBERT HENRY EASTGATE with the intention of permanently depriving MAUREEN EASTGATE & ALBERT HENRY EASTGATE of the said properties.


  1. On 21 August 2023, Pita Salauneune (1st accused) and Alivereti Cokanasiga (2nd accused) being respectively represented by Legal Aid counsels Ms. M. Tuiloma and Ms. L. Tavaiqia, pleaded guilty to the aforesaid charges voluntarily and unequivocally.
  2. Prosecutor Mr. Zunaid read out the Summary of facts on 22 August 2023, which facts were voluntarily admitted by Pita Salauneune (1st accused) and Alivereti Cokanasiga (2nd accused) via their respective Legal Aid counsels Ms. M. Tuiloma and Ms. L. Tavaiqia.

The Antecedent Reports of the 1st and 2nd accused also submitted by the prosecutor show that the two accused have no prior conviction.


  1. Having admitted the prosecution’s Summary of facts, the two accused were then formally convicted by this Court, and the matter adjourned for plea in mitigation and sentencing hearing.
  2. Plea in mitigation and sentencing hearing was held on 6 October 2023, and the matter then adjourned for sentencing.
  3. This is the Court’s finding on sentence.

Brief facts


  1. On Tuesday 30 August 2022 at about 10.30am, Maureen Eastgate (PW1) and her husband Albert Henry Eastgate a.k.a Tiko Eastgate (PW2) left their home at Vunikoka Farm, Naitasiri, and travelled to Suva, and returned to their home at about 3.30pm. Upon reaching their home, they entered via the backdoor and PW1 noticed that their guitar was on the floor which made her suspect that something was wrong since the same guitar was placed in their bedroom upstairs. PW1 then proceeded upstairs and noticed that their bedroom door was open which was locked before they went to Suva. In their bedroom, PW1 noticed that things were scattered and the cupboards opened, recalling that they had earlier packed in preparation for their upcoming trip to New Zealand. PW1 and PW2 noticed that the following items were stolen from their home: 2 x binoculars; 1 x Acer laptop with bag; 1 x Sketchers brand pair of canvas; 1 x Asics brand pair of canvas; 1 x orange in colour ladies bag; and NZD$14,140.00 cash, all to an approximate total value of $16, 050.00.

On 6 September 2022, Pita Salauneune (1st accused) and Alivereti Cokanasiga (2nd accused) were arrested by the police, and subsequently interviewed under caution and charged. The following items belonging to the complainants PW1 and PW2 including those that were bought by the two accused from the stolen money were seized by the police during the investigation:


  1. 1 x Acer laptop with charger
  2. 1 x NZ$100 note
  1. 1 x 32 inch Maxton brand flat screen TV
  1. 2 x Awei brand speakers
  2. 1 x Dork brand binoculars
  3. 1 x pair of Asics brand canvas
  4. 1 x Samsung A15 phone with cover
  5. $100.40 cents cash
  6. 1 x green hoody
  7. 1 x red hoody
  8. 1 x red Bluetooth speaker
  1. 1 x Adidas sling bag
  1. 1 x binoculars

At the time of the offending, Pita Salauneune (1st accused) was 21 years old and Alivereti Cokanasiga (2nd accused) was 18 years 10 months old, and they were casual workers and resided at Tacirua, Suva. Furthermore, both accused made full admissions in their caution interview statements.


Pita Salauneune (1st accused) admitted that on 30 August 2022 he planned with Alivereti Cokanasiga (2nd accused) to break into PW1’s and PW2’s home and steal money. They then went to PW1’s house and seeing no one including the workers there, they then forcefully punched and tore down the window and the 1st accused gained access into the house and opened the door to let the 2nd accused in. They then ransacked the house and stole the money in NZ currency from inside a pink purse; 2 x pairs of canvas; binoculars; chicken; 1 x laptop; and some clothes which were later thrown away in the forest. The stolen items were then taken to the village, and once sited by the 2nd accused’s wife, she then questioned them about the items to which they responded that they had stolen them by breaking into the Eastgates house. They then went to Suva city and exchanged the NZ currency to Fijian currency at MHCC and Western Union, and gave a portion of the money to some relatives while they spent some to purchase beer, mobile phone, and book three hotel rooms to continue consuming alcohol. The 1st accused gave the stolen laptop to his brother to sell. When shown the laptop and pairs of canvas by the police, the 1st accused positively identified them as being stolen from the Eastgates house.


Alivereti Cokanasiga (2nd accused) admitted having planned with the 1st accused to burgle the Eastgates house. The items that they stole from inside the Eastgates house included a laptop with charger, a pair of canvas, clothing, binoculars, and money in NZ currency. When shown the record of the stolen items by the police, the 2nd accused confirmed those items as being stolen by them. Furthermore, they had exchanged the stolen NZ currencies to Fijian currency and used the money to purchase alcohol, a music box, a mobile phone, a jacket, and book hotel rooms.


On 7 September 2022 at the police station, PW2 Albert Henry Eastgate a.k.a Tiko Eastgate positively identified the following stolen items recovered by the police as belonging to him and PW1: a) 2 x binoculars; b) 1 x Acer laptop with bag; c) 1 x Sketchers brand pair of canvas; d) 1 x Asics brand pair of canvas; and e) 1 x orange in colour ladies bag.


Count 1 - Aggravated Burglary


  1. The maximum sentence for the offence of Aggravated Burglary contrary to section 313(1)(a) of the Crimes Act 2009 is a custodial term of 17 years.
  2. The Fiji Court of Appeal in Kumar v State [2022] FJCA 164; AAU117.2019 (24 November 2022) at paragraphs 75 to 78, held:

[75] As the first step, the court should determine harm caused or intended by reference to the level of harm in the offending to decide whether it falls into High, Medium or Low category. The factors indicating higher and lower culpability along with aggravating and mitigating factors could be used in the matter of deciding the sentencing range. This would allow sentencers wider discretion and greater freedom to arrive at an appropriate sentence that fits the offending and the offender.


Determining the offence category

The court should determine the offence category among 1 – 3 using inter alia the factors given in the table below:

Factors indicating greater harm
Theft of/damage to property causing a significant degree of loss to the victim (whether economic, commercial, sentimental or personal value)
Soiling, ransacking or vandalism of property
Restraint, detention or gratuitous degradation of the victim, which is greater than is necessary to succeed in the burglary. Occupier or victim at home or on the premises (or returns home) while offender present
Significant physical or psychological injury or other significant trauma to the victim beyond the normal inevitable consequence burglary.
Violence used or threatened against victim, particularly the deadly nature of the weapon
Context of general public disorder
Factors indicating lesser harm
Nothing stolen or only property of very low value to the victim (whether economic, sentimental or personal). No physical or psychological injury or other significant trauma to the victim
Limited damage or disturbance to property. No violence used or threatened and a weapon is not produced

[76] Once the level of harm has been identified, the court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they plead guilty or not guilty and irrespective of previous convictions. A case of particular gravity, reflected by multiple features of harm, could merit upward adjustment from the starting point before further adjustment for level of culpability and aggravating or mitigating features.


LEVEL OF
HARM
(CATEGORY)
BURGLARY
(OFFENDER
ALONE AND
WITHOUT A
WEAPON
AGGRAVATED
BURGLARY
(OFFENDER EITHER
WITH ANOTHER
OR WITH A WEAPON)
AGGRAVATED
BURGLARY
(OFFENDER WITH
ANOTHER AND
WITH A WEAPON)
HIGH
Starting Point:
5 years
Sentencing Range:
3 – 8 years
Starting Point:
7 years
Sentencing Range:
5 – 10 years
Starting Point:
9 years
Sentencing Range:
8 – 12 years
MEDIUM
Starting Point:
3 years
Sentencing Range:
1 – 5 years
Starting Point:
5 years
Sentencing Range:
3 – 8 years
Starting Point:
7 years
Sentencing Range:
5 – 10 years
LOW
Starting Point:
1 year
Sentencing Range:
6 months – 3 years
Starting Point:
3 years
Sentencing Range:
1 – 5 years
Starting Point:
5 years
Sentencing Range:
3 – 8 years

[77] The following table contains a non-exhaustive list of higher and lower

culpability factors relating to the offending. Any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.


Factors indicating higher culpability
Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation) or victim compelled to leave their home (in particular victims of domestic violence). Child or the elderly, the sick or disabled at home (or return home) when offence committed
A significant degree of planning, or organization or execution. Offence committed at night.
Prolonged nature of the burglary. Repeated incursions. Offender taking a leading role.
Equipped for burglary (for example, implements carried and/or use of vehicle)
Factors indicating lower culpability
Offence committed on impulse, with limited intrusion into property or little or no planning
Offender exploited by others or committed or participated in the offence reluctantly as a result of coercion or intimidation (not amounting to duress) or as a result of peer pressure
Mental disorder or learning disability, where linked to the commission of the offence

[78] The following table contains a non-exhaustive list of aggravating and mitigating factors relating to the offender. Any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.


Factors increasing seriousness
Factors reducing seriousness or reflecting
personal mitigation
Statutory aggravating factors:
Genuine remorse displayed, for example the offender has made voluntary reparation to the victim
Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
Subordinate role in a group or gang
No previous convictions or no relevant/recent convictions.
Offence committed whilst on bail or parole.
Cooperation with the police or assistance to the prosecution
Other aggravating factors include:
Good character and/or exemplary conduct
Any steps taken to prevent the victim reporting the incident or obtaining assistance and/or from assisting or supporting the prosecution
Determination, and/or demonstration of steps taken to address addictions or offending behaviour
Established evidence of community impact
Serious medical conditions requiring urgent, intensive or long-term treatment
Commission of offence whilst under the influence of alcohol or drugs
Age and/or lack of maturity where it affects the culpability and responsibility of the offender
Failure to comply with current court orders
Lapse of time since the offence where this is not the fault of the offender
Offence committed whilst on licence
Mental disorder or learning disability, where not linked to the commission of the offence
Offences Taken Into Consideration (TICs)
Any other relevant personal considerations such as the offender being sole or primary care giver for dependent relatives or has a learning disability or mental disorder which reduces the culpability

  1. Based on the Fiji Court of Appeal sentencing guideline for the offence of Aggravated Burglary in Kumar v State [2022] FJCA 164; AAU117.2019 (24 November 2022) and the Prosecution’s Summary of facts, the category of harm in this instant is medium, thus, the corresponding sentencing range of 3 to 8 years imprisonment, and starting point of 5 years imprisonment.
  2. With the starting point of 5 years imprisonment, 2 years is added for the aggravating circumstances of the offending, in particular, the preplanned unlawful trespass and extent of ransacking and damage done to the complainants house, the substantial number of items stolen and complainants financial loss including the 1st and 2nd accused persons total disregard of the utility and value, and lack of respect of the complainants home and hard-earned properties. Furthermore, the emotional and psychological trauma endured by the complainants including their loss, financial or otherwise, and efforts to recover such loss, and prevalence of the offence of Aggravated Burglary are aggravating factors too.
  3. Having considered Defence counsels plea in mitigation, 1 year is deducted considering that:
    1. Pita Salauneune (1st accused) is 22 years old with no prior conviction; single with no children, and resides with his 72 year old grandfather at Tacirua; a casual labourer earning about $140 per week;
    2. Alivereti Cokanasiga (2nd accused) is 19 years old with no prior conviction; has a 1 year 9 month old daughter with his de facto partner; sole breadwinner for his family while his de facto partner looks after their daughter at home, and earning $150 per week as a labourer; and assists his elderly parents as his father is sickly and requires assistance at home; and
    1. assisting the police resulting in the partial recovery of the stolen items, in particular, the 2 x binoculars; 1 x Acer laptop with bag; 1 x Sketchers brand pair of canvas; 1 x Asics brand pair of canvas; 1 x orange in colour ladies bag; and NZ$100,

thus, leaving a balance of 6 years.


  1. With the custodial term of 6 years, I further make the following special deductions:
    1. Early guilty plea – 2 years is deducted being the one third deduction for the early guilty pleas of the 1st and 2nd accused. This approach is consistent with the Fiji Supreme Court decisions in Qurai v State [2015] FJSC 15; CAV24.2014 (20 AUGUST 2015) per Justice Saleem Marsoof at para. 54, and Aitcheson v The State [2018] FJSC 29; CAV0012.2018 (2 November 2018), paras. 12-15.

ii) Time spent in custody until guilty plea and pursuant to section 24 of the Sentencing and Penalties Act 2009, and Aitcheson v The State [2018] FJSC 29; CAV0012.2018 (2 November 2018), paras. 7-11, a deduction of 12 months or 1 year for both accused.


  1. Thus, the head sentence for Count 1: Aggravated Burglary is:
    1. 3 years imprisonment for Pita Salauneune (1st accused); and
    2. 3 years imprisonment for Alivereti Cokanasiga (2nd accused).

Count 2 - Theft


  1. The maximum sentence for the offence of Theft contrary to section 291(1) of the Crimes Act 2009 is a custodial term of 10 years.
  2. In terms of the sentencing tariff for Theft, Justice Vincent Perera (as he then was) held in Waqa v State [2015] FJHC 729; HAA017.2015 (5 October 2015) at paras. 10-14:

Tariff for Theft under section 291 of the Crimes Decree


10. After considering a number of decisions of this court on tariff for the offence of Theft, I find that the court has opined the lower end to be 2 months imprisonment and the higher end to be 3 years imprisonment. (See Navitalai Seru v State [2002] FJHC 183; State v Saukilagi [2005] FJHC 13; Chand v State [2007] FJHC 65; Kaloumaira v State [2008] FJHC 63; Chand v State [2010] FJHC 291; Ratusili v State [2012] FJHC 1249; State v Koroinavusa [2013] FJHC 243; Lal v State [2013] FJHC 602; State v Batimudramudra [2015] FJHC 495).

11. An imprisonment of 2 to 9 months has been the tariff recognised under the now repealed Penal Code for a first offender who commits the offence of Theft. Section 262 of the Penal Code specified three different penalties for the offence of Theft as follows:

a) First offence of Theft (simple larceny) – 5 years

b) Simple larceny committed after having been previously convicted of a felony – 10 years

c) Simple larceny committed after having been previously convicted of a misdemeanor – 7 years

12. However, it is pertinent to note that the Crimes Decree 2009 does not specify different penalties for Theft based on previous convictions. The only penalty provided under section 291(1) of the Crimes Decree is an imprisonment for 10 years.

13. In view of the fact that the Crimes Decree has increased the maximum penalty for Theft from 5 years as stipulated in the Penal Code to 10 years, it is logical that the tariff for Theft should also be increased. Further, it is no longer the law in Fiji to recognise a different sentence or a tariff for Theft for offenders with previous convictions.

14. Considering all the above factors and the decisions of this court, I am inclined to hold the view that the tariff for Theft is 4 months to 3 years imprisonment.


  1. The sentencing range for Theft is 4 months to 3 years imprisonment, and for this instant I take the starting point of 12 months or 1 year.
  2. 2 years is added to the 1 year for the aggravating circumstances of the Theft bearing in mind the stolen properties and considerable loss to the complainants, extent of damage done to the complainants ransacked house, the accused persons total disregard of the utility and value of the complainants properties and house including the emotional and psychological trauma sustained by the complainants due to the offending, and prevalence of the offence of Theft.
  3. For the mitigating circumstances, I deduct 1 year leaving the balance of 2 years.
  4. Due to the early guilty pleas I further deduct 8 months being the one third, and further deduction of 12 months or 1 year for time spent in custody resulting in the head sentence of 4 months for the offence of Theft for both accused.
  5. Considering the Totality principle of sentencing and relevant provisions in the Sentencing and Penalties Act 2009, the custodial terms for Count 1: Aggravated Burglary and Count 2: Theft are hereby made concurrent resulting in the aggregate custodial term of 3 years for both accused.
  6. Based on the above reasons, I hereby sentence Pita Salauneune (1st accused) and Alivereti Cokanasiga (2nd accused) to 3 years imprisonment with a non-parole period of 2 years or 24 months.
  7. Thirty (30) days to appeal to the Fiji Court of Appeal.

..........................................................
Hon. Justice P. K. Bulamainaivalu
Puisne Judge


At Suva
9th July 2024


Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for 3rd Accused

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