State v Raitini [2003] FJHC 185; HAC0005T.2003S (23 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC005 OF 2003S

THE STATE

V

TIERI RAITINI and 2 Others

Gates J.

Mr S. Leweniqila and Mr W. Rano for the State
Mr R. Singh for Accused 1
Accused 2 in Person

14-20 October 2003, 23 October 2003

SENTENCE

[1] The 2 Accused have been found guilty by this court of a single count of robbery contrary to section 293(1) (a) of the Penal Code. This offence is a felony and because it is an offence with a circumstance of aggravation it carries a maximum sentence of life imprisonment. The circumstance of aggravation here is the fact that this crime was a robbery carried out by two persons acting together. Such an offence committed by one person acting alone would have attracted a maximum term of 14 years only.

[2] I have considered the guideline judgments for sentences for aggravated robbery, R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 and The State v Ilaisa Sousou Cava (unreported) Suva High Court Criminal Case No. HAC007.00S; 19 April 2001. In Cava, Shameem J. reviewed English, New Zealand, and Fiji sentencing decisions.

[3] The State submits the tariff for this offence is between 4-7 years imprisonment; Isoa Waqa & 2 Others v The State (unreported) Suva High Court Cr. App. HAA92 & 93.02S; 31 January 2003. Of the various categories of robberies, I regard this robbery as in the lowest category of tariff range for sentencing purposes, of between 2 to 3 years imprisonment. Though there were two persons involved in the crime, the money taken was small, no weapon was used, and no injuries were caused.

[4] It has been submitted by Accused 2 that a suspended sentence is the appropriate sentence here. In Isoa Waqa (supra at p.4) Shameem J. had this to say:

"The tariff for robbery with violence cases is four to seven years. In cases where the victim has received no injury, there is no evidence of planning, no weapon was used and the value of the stolen items negligible, the sentencer might be justified in choosing a starting point as low as 3 years. However, it is difficult to envisage a situation where a non-custodial sentence might be considered."

Mitigation

[5] The Accused are both young men. Tieri [Accused 1] is 26 years old and is recently married and Moriti [Accused 2] is 31 and single. Tieri is living with his mother, whom I am told had sold vegetables and crops to support him. She is now a housegirl.

[6] Accused 2 says he is looking after a brother and a sister and he has been having a difficult time since his suspension from duties as a police officer, without pay. He says his mother is very sick at the moment.

[7] The Accused are both of previous good character.

[8] As a result of this conviction both Accused will lose their employment with the police force and may find it difficult to gain fresh employment.

[9] I note that the money taken from Ms Huai, the victim, during the search in Drew Street was indeed a small amount of money and that she was not physically harmed during the robbery, during the unlawful and inappropriate search, and during her improper detention by the Accused. I sentence on the basis that there was no planning carried out for this crime. This was however a horrible and harrowing incident for Ms Huai and one which she is unlikely to forget in a hurry. The circumstances of Ms Huai’s treatment and captivity far outweigh in significance the smallness of the money taken from her.

Aggravating factors

[10] Whilst I was grateful to receive the Professional Standard Divisions Report for the half-year Jan-June 2003, its significance is not, without further explanation, clear. The number of complaints against police for 2003 appear to have decreased by 38.5%, which might be encouraging. No figures have been given however stating what are the numbers of police officers convicted for offences in the criminal counts.

[11] Prosecuting counsel correctly submits the aggravating factors in this offence are to be seen in the fact that the Accused were serving police officers, on duty, and in uniform at the time they committed this offence. The offence was a gross abuse of power, an abuse of their authority as police constables. The public rightly looks to the police as guardians of the law. They are expected to be visible on the streets to protect the people of Fiji from harm, and always to act with integrity.

[12] It does not expect innocent persons to be dragged out of restaurants by their wrists, to be bundled into police patrol cars, detained, taken to isolated places and inappropriately searched in dark streets, and to be finally robbed of money, all of which deeds being perpetrated by police officers.

[13] The Accused picked on vulnerable persons against whom to carry out this crime. They were foreigners who spoke no English. These tourists had rightly lodged their passports with the Immigration Department for extension of their stay. They could not carry them around with them. They had photocopies only to prove the legitimacy of their stay in Fiji. From her demeanour in the witness box it was clear Ms Huai felt defenceless without her passport and was considerably frightened and harrassed by your conduct. Your conduct as police officers will send all the wrong messages to the persons the tourist industry seek to attract to spend time in Fiji.

[14] There was no plea of guilty to this charge, for which a discount in sentence would have been given. The witnesses have had to stay back in order to give evidence in the case.

[15] You have badly let down those relatives who believed in you and who depended on you. It is your conduct that has left them exposed and in hardship.

[16] I bear in mind that prison life will be a more difficult experience for you as former police officers than it would be for ordinary prisoners. But there is a need for a clear message that criminal acts by police officers will never be taken lightly. There is a need for a deterrent sentence, to deter others in the Police Force who may think it is appropriate to abuse their uniform and to prey on the vulnerable.

[17] I bear in mind all that has been said on your behalf, or by you. I note you are first offenders. Using the lowest sentence in the tariff range as a starting point of 2 years imprisonment, I add a further year for the fact that you were in company together when you committed the crime, that you were police officers who have abused society’s trust, and that you have committed your crime against a vulnerable and disadvantaged victim.

[18] Accordingly you are each sentenced to an immediate term of 3 years imprisonment.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions
Solicitors for Accused 1: Messrs Kohli & Singh
Accused 2: In Person