State v Fong [2005] FJHC 722; HAC010.2004S (3 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC010 OF 2004S

THE STATE

V

PATRICK FONG

Gates J

Mr D. Toganivalu for the State
Mr Vakaloloma for Patrick Fong [Accused 1]

2 March, 3 March 2005

SENTENCE

Robbery with violence, being armed with an offensive weapon (2 counts) section 293(1)(a) Penal Code; unlawful use of a motor vehicle section 292 PC; resisting arrest section 247(b) PC; items worth $570 taken; $325 worth recovered [count 1]; taxi taken used in further robbery at liquor shop; masks, knife, pinch bar and bottles used as weapons; $143 of goods stolen [count 3]; minor injuries to security guard and to bystander customer of shop; expression of remorse by Accused; full and frank admissions; terror of experience for victims; need for harsh deterrent sentences in cases where victims taxi drivers; little planning; first offender, now serving for similar offence; 27 year old; in bad company; ultimately overriding need to protect vulnerable victims.

[1] On the 21 February 2005 prior to commencement of a trial with 4 others Patrick Fong [Accused 1] pleaded guilty to 4 counts on the information. They were, robbery with violence whilst armed with a weapon contrary to section 293(1)(a) of the Penal Code [counts 1 and 3], unlawful use of a motor vehicle contrary to section 292 of the PC [count 2], and resisting arrest contrary to section 247(b) of the PC [count 4].

[2] On 15 January 2004 at 9 o’clock at night this Accused with 4 others stopped the complainant’s taxi at Brewster Street Toorak. The complainant was pulled out of the taxi and was threatened and a small knife was put to his neck. He was taken in the taxi to Dinbandhu Primary School. Once there, his legs were tied up, his face blindfolded, and his hands tied. This was done by tearing up his singlet in order to do so. Two youths were left behind to watch over the complainant.

[3] Meanwhile this Accused drove the taxi to Raiwaqa. Later the police arrived at the school, arrested the two “guards” and took the complainant taxi driver to the Central Police Station to identify his taxi. He told the police that $45 cash was missing from the console box, and also his mobile phone worth $200, a taxi meter worth $275 and a taxi sign worth $50. Later the taxi meter and taxi sign were recovered.

[4] The Accused used the taxi afterwards to commit the robbery at a shop at Votua Road, Samabula.

[5] Later in the evening at 10.30 pm this Accused with others drove to the John Beaters Enterprise Shop in Votua Road. This Accused was the driver and he stayed inside the taxi. The other four, in masks, burst into the shop. One was armed with a knife, one a pinch bar, one a stick, and some had glass bottles. Once inside the shop, the men threw bottles around the shop.

[6] Liquor and cigarettes valued in all at $143.85 were stolen. One of the shop security guards was injured from being hit by a pinch bar on the right shoulder, and a customer was hit by a bottle which broke the skin on his right leg. The getaway taxi’s registration number was noted by the staff and so the taxi was eventually followed by police down to Wailoku. At the gates of the Savura Creek Pumping Station, the taxi could go no further. The Accused with others got out. He was apprehended after a chase and resisted arrest.

[7] On being interviewed the Accused made forthright admissions concerning his involvement. He said the evening’s crimes had not been planned. They went down to Village Six to get a taxi. Two youths were posted to look after the driver at the School, whilst they went in the taxi to rob the shop. The Accused said the job “came up whilst we were moving around in the car.” At the shop he knew his accomplices were armed. He said he would like to seek forgiveness for what he had done. He had no idea what had happened to the stolen items.

Aggravating factors

[8] The offences are aggravated here by the use of weapons, and by the fact that the robberies were committed with others, making it both useless and dangerous for the victims to resist. It was thereby also a more terrifying experience for them.

[9] Only minor injuries were caused at the shop to two of the persons caught up in the event. But nonetheless they were injured during the robbery and I bear that fact in mind.

[10] Often for the victims of these crimes, the terror of the experience is the uncertainty of what is to be their fate at the hands of persons who seem to have no regard for the consequences of their violent behaviour.

[11] Much has been said of attacks on taxi drivers. The court has concluded that the need for harsh deterrent sentences to protect taxi drivers, and the transport facility they provide for the public, far outweighs the personal mitigating circumstances of unthinking or alienated young men: Peni Raiwalui v The State (unreported) Suva Crim. App. No. HAA030.03S, 12 November 2003; Vilikesa Koroivuata v The State (unreported) Cr. App. HAA064.04S, 20 August 2004; State v Charles Marvick, (unreported) Suva Cr. Case No. HAC027.028.04S 19 October 2004.

[12] The Accused says he also is a taxi driver. How well one wonders would he have taken similar treatment meted out to him when on duty at night?

[13] The account given to the police by the Accused suggests the crimes did not have much planning behind them. I do not regard it as an aggravating factor here.

Mitigating factors

[14] I am told he was at the time a first offender. Since committing these crimes he has been imprisoned for 3½ years for another case of robbery with violence.

[15] Mr Vakaloloma tells me the Accused is 27 years old. He is from a broken home. His parents separated when he was very young. He was supporting his mother, two younger brothers and a sister. He was the sole breadwinner. He went up to Form 6 but could go no further because of financial constraints.

[16] He has pleaded guilty and he fully co-operated with the police. He made frank admissions. He says he committed the offences when he was under the influence of alcohol. I regard these as offences committed whilst in bad company. The Accused is however intelligent enough to know right from wrong, and now to realise his folly, indeed his grave mistake in taking part in this foolhardy enterprise.

Conclusion

[17] The tariff for robbery with violence in Fiji is 4-7 years. The offence carries a maximum penalty of life imprisonment. Looking at the severity of the offences overall I start with a sentence of 4 years. I add an extra year since this is an offence against a taxi driver, who is in a vulnerable class of victims. I add another year for the fact that weapons were used, some injuries caused, the taxi driver victim was tied up and blindfolded, and for the fact that the offence was committed with others.

[18] From that total of 6 years I give a discount of 1½ years for the plea of guilty and a further 1 year for his being a first offender at the time.

[19] The sentence of the court is therefore as follows:

Count 1 [Robbery with Violence] the Accused is sentenced to 3½ years imprisonment, concurrent to any term he is presently serving.

Count 2 [Unlawful Use of a Motor Vehicle] 4 months imprisonment concurrent.

Count 3 [Robbery with Violence] 3½ years imprisonment concurrent.

Count 4 [Resisting Arrest] 3 months imprisonment concurrent.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for Accused 1: Legal Aid Commission, Suva