IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION

CRIMINAL ACTION NO: HAC 0016 OF 1996

BETWEEN:

STATE
APPELLANT

and

SEMISI WAINIQOLO
RESPONDENT

Mr. P. Petaia Counsel for the State
Accused in Person Unrepresented

SENTENCE

COURT: Well, Mr. Wainiqolo, you have indeed had a charmed life with suspended sentences, and sentences made concurrent by Magistrates for no observable reason. Also in at least one instance a Magistrate did not activate a suspended sentence, when Penal Code bade him do so, or give reasons why he did not. No reasons by him appear.

The above applies more particularly after the date of the present offence. It is a 1993 offence and has taken so long to be determined because of your delaying tactics which are notable throughout the history of this matter. You changed your election from High Court trial to Magistrates Court trial, then back to High Court trial. You did not answer bail on occasions.

When the acid test was put upon you during the trial within a trial at your High Court trial before me, it appeared that you had no defence to the charge of Receiving, at the very least, to which you ended up pleading 'Guilty', after a wasted day inquiring into your allegations of impropriety by police on obtaining your cautioned and charge statements. You were forthright enough to acknowledge you were wasting the Court's time. This was not before assessors had been summoned for a trial date on 23rd June, 1997, which you did not turn up for, claiming you forgot. The only benefit it you can claim by your plea of 'Guilty' is that 2 further weeks of trial were not wasted.

Your mitigation so far as it related to your family does not impress the Court, considering the hardship you have inflicted on them by your long list of criminal activities since 1987.

Your written letter in mitigation contains very convenient excuses blaming society instead of yourself, where the blame is properly placed. You do not have to commit crime to survive.

The Court advises you to rid your mind of the ideas expressed by your friend who wrote that letter for you, as you told us.

It appears you have indulged in crime unabated since at least 1992. Before that there were minor offences mostly involving fines. You were first imprisoned in 1988 for Shop breaking and Larceny.

Between 8 and 10 June 1993, immediately before the commission of the present offence on 18 June 1993, but unknown to the Courts dealing with you at that time, you had effected a big Office breaking, entering and stealing from the premises of Qantas Airways. You stole jewellery to the total of $3440 of which only $1200 worth was recovered.

You had received a suspended sentence on 18 January 1993 of 4 months imprisonment suspended for 1 year for Larceny from a Dock committed in 1991.

On 5 January 1994 for a 1993 offence you received a further suspended sentence of 4 months imprisonment suspended for a year though it was a breach of the earlier suspended sentence of 18 January 1993. No reasons were given by Magistrate Shah for not activating the suspended sentence as was his duty under Section 300(1) of the Penal Code.

On 3 April 1995 you received sentences totalling 15 months imprisonment for Larceny and Housebreaking and Larceny committed in the latter half of 1994, and Assault with Intent to Rob in early 1995 and Possession of Dangerous Drugs committed in 1992.

On 4 April 1995 another swathe of offences committed in 1992, 1993 and 1994 were dealt with. They were Office breaking Entering Larceny (the Qantas matter above referred to committed between 8-10 May, 1993) 2 Robberies on 10.4.90 and 11.11.92 and a further Housebreaking Entering and Larceny from 1994 where $5600 was taken.

Sentences were imposed all concurrent with the 15 months imprisonment you were then serving under the sentences just mentioned above of 3 April, 1995, with the exception of 3 months imprisonment consecutive on the 1992 Robbery making a final sentence of 18 months imprisonment.

You have served those sentences resulting in your emerging from prison in the middle of 1996.

You have been re-arrested recently on 20 June 1997 and put before the Court at Suva for Burglary and Larcency. A trial date has been fixed for 29 July 1997. I, of course, exclude that totally from consideration in fixing the proper sentence in the present matter.

In view of the record of matters dealt with in the Courts for dates prior to 18 June 1993, I do not believe you were a reluctant party to the Receiving of Stolen Property in the present matter, as you claim. I reject your claim that the robbery proceeds were forced on you by your companion when he saw police approaching. I believe you and he were heading somewhere to get money for the watch and rings of the taxi driver.

The offence of Receiving carries 14 years imprisonment as a maximum. Here the property was obtained right in front of you by Robbery with a threat of personal violence to the taxi driver by your companion putting a knife to the taxi driver's neck. The property was handed to you pursuant to that threat, so that you obtained it by a felony committed in your presence.

You were not a professional "fence" but were helping the actual robber to make off with proceeds when apprehended. You were doing this quite voluntarily, in my view.

The offence calls for a custodial term. You were also called upon to show cause why the suspended sentence of 18 January 1993 should not be activated. The present offence was committed about half way through the operational period of the suspended term. You showed no cause.

The sentence of the Court therefore is, for the Receiving offence, that you be imprisoned for 18 months. It is further ordered that the 4 months suspended sentence be activated to be served consecutively to the Receiving sentence.

It is ordered that the property recovered be returned to its rightful owner ABDUL MUNAF s/o ABDUL RAHIM.

The assessors empanelled to try the accused are discharged from further attendance in this matter.

K.J. TOWNSLEY
JUDGE

4TH JULY 1997
SUVA
HAC0016.96S