State v Tuiyanawai [2005] FJHC 180; HAC0022S.2004S (14 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004S

STATE

v.

SAMISONI TUIYANAWAI
SEMISI WAINIQOLO
SOLOMONI BOINI
MOSESE YACO

Hearing: 7th June 2005
Sentence: 14th July 2005

Counsel: Mr. W. Kuruisaqila for State
1st 2nd & 4th Accused in person
3rd Accused absent

SENTENCE

You are each convicted of robbery with violence at the Westpac Bank on the 5th of June 2003. The 3rd Defendant is also convicted of unlawfully using a motor vehicle on the 4th of June 2003.

The tariff for robbery generally is 4 to 7 years. Where arms are used, injury is caused or there is a planned robbery involving a large number of people, a higher sentence may be justified. Aggravating factors are injuries, evidence of planning, and the high value of the property stolen. Mitigating factors are good character, pleas of guilty and remorse.

Because of the seriousness of the offending in this case, I pick as my starting point 7 years imprisonment. Although there is evidence of pinch bars being carried in the car driven by the 3rd Defendant, there is no evidence that they were used. I treat this as a bank robbery without arms, but with the involvement of a number of people.

The 1st Defendant

I take into account all you have said in mitigation, your age and your family circumstances. Your one previous conviction, for Causing Death by Dangerous Driving is dated 1994 which I disregard. In your case, not only did you take part in the planning of this robbery, but you acted in breach of the trust vested in you as an Armour Guard employee. This robbery would not have taken place without the information you provided. You knew that the robbery would take place with the involvement of a group of men, and you showed no regard for the lives and welfare of your own colleagues who were guarding the Armour Guard vehicle on the 5th of June. To reflect these aggravating factors, and after adjusting for the mitigation, I sentence you to 9 years imprisonment. Although this is higher than the tariff I consider that it is justified by the gross breach of trust, the value of the money stolen and your own pivotal role in the robbery.

The 2nd Defendant

You have been convicted on the basis of the doctrine of recent possession. I have no doubt that you played a crucial part in this robbery, either as a planner or as a robber. It is for that direct role that you received $62,000 shortly after the robbery. Such a large sum of money does not suggest a marginal role.

I take into account all you have said in mitigation, the fact that you support your son and the absence of your wife. You are not entitled to any reduction for good character or for remorse or a guilty plea. You have a long list of previous convictions including several for robbery. The aggravating factors are that this robbery was planned, that almost half a million dollars were stolen, that a group of men were involved and that not all the money was recovered. I would sentence you to 8 years imprisonment. From that I deduct 1 year for the period of time you have spent in remand. I sentence you to 7 years imprisonment.

The 3rd Defendant

The 3rd Defendant’s role was as a back-up driver. His role was crucial to the robbery because he transported the robbers to and from the robbery. His vehicle carried the pinch bars (which may not have been used) and he was clearly part of the enterprise. I asked the State to provide an antecedent history for the 3rd Defendant, in his absence. I take into account his limited education, the fact that he earns his living selling fish, and that he supports two small children on his earnings.

Aggravating factors are the group involvement, the planning and the value of the money stolen. The fact that the property belonged to a bank is also an aggravating factor. I sentence him to 6 years imprisonment. On Count 3, I sentence him to 6 months imprisonment to be served concurrently with Count 1.

The 4th Defendant

You are the least culpable of the defendants, but your role was also crucial to the robbery. Without the transportation you provided, the robbery would not have succeeded. You knew that the robbers were using you and the vehicle for unlawful purposes. This is clear from your caution interview. But you lacked the moral courage to resist them, or to refuse to co-operate or to report their activities. Instead you joined them as an aider and abetter.

I choose the same starting point but I give you substantial discount for your good character. I also accept that you are a loving husband and father. It is a pity that your love for your family did not give you a sense of responsibility about the consequences on their welfare of your own criminal activity. I take into account the real hardship suffered by your family and in particular by your children.

Taking into account all mitigating and aggravating circumstances, I sentence you to 4 years imprisonment.

Sentences

The sentences are as follows:

1st Defendant: 9 years imprisonment;

2nd Defendant: 7 years imprisonment;

3rd Defendant: 6 years imprisonment and 6 months

(concurrent);

4th Defendant: 4 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
14th July 2005