State v Rokonabete [2008] FJHC 226; HAC118.2007 (15 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 118 OF 2007

BETWEEN:

THE STATE

AND:

SAKIUSA ROKONABETE
AKUILA DROMUDOLE
ALIFERETI TOKONA
GUSTON FREDERICK KEAN

Counsel: s. H. Tabete for the State
All Accused in Person

Date of Sentence: Monday 15th September, 2008

SENTENCE

[1] All four Accused persons were convicted of one count of robbery with violence following a trial before assessors. This is their sentence.

Facts

[2] On 7 July 2007, at around 5.00pm, the Accused persons in the company of some other men raided the MH Superfresh Supermarket, Tamavua. They were masked and armed with knives, a pinch bar, and bottles. The Supermarket was full of customers, mostly women and children because it was a Saturday afternoon. All the cashiers at the Supermarket were women. The cashiers were at their counter serving the customers. The robbers stormed into the Supermarket and started breaking bottles at the cashier area. The employees of the Supermarket and the customers were verbally threatened to get down. People were terrified. Women and children were crying. The robbers ran out and made their escape in a mini van which was parked at the exit door of the Supermarket. They took with them about six cash register tills which had cash takings amounting to about $21,000. Some customers who were at the counter were also robbed of cash and personal effects such as mobile phone and jewellery.

[3] The planning of the robbery was done in advance in a drinking party. The robbers were drunk during the robbery. The loot was shared and the cash register tills were disposed and the getaway vehicle was abandoned in separate isolated locations. Except for the tills, nothing was recovered.

Sentencing Principles

[4] The maximum penalty prescribed for robbery with violence is life imprisonment. The rising incidence or level of violent offences in our community has led the Parliament to amend section 33 of the Penal Code and to empower the courts to fix a term of imprisonment for an offence of robbery with violence. The degree of persistence by some offenders has led the courts to increase the tariff for this offence.

[5] In Basa v The State, Criminal Appeal No. AAUU24 of 2005, the Court of Appeal observed that the earlier decisions in which New Zealand cases have been used as guidance in assessing appropriate penalties for robbery with violence (such as Moananui [1983] NZCA 66; [1983] NZLR 537) may need to be reconsidered. Under those decisions a "starting point" is suggested at 6 or more years, increasing to 8 or more years where there is a greater risk of violence or harm. The Court of Appeal pointed out that the levels of sentences in robbery cases should be based on English authorities because the sentence provided in our Penal Code is close to that in the English Law.

[6] In Wainiqolo v State, Criminal Case No. HAC008 of 2005, Winter J used a starting point of 12 years imprisonment for an armed robbery of a business woman who was on her way to bank her cash takings. Winter J considered the starting point on the basis of the English authorities first described in Turner 61 Cr. App. R.67 and then Daly [1981] 3 Cr. App. R.(S) 340, and Hooley [2003] EWCA Crim 848; [2001] 2 Cr. App. R.(S) 105. The offender was sentenced to a term of 10 years imprisonment consecutive to an existing imprisonment sentence of 7 years. On appeal, the Court of Appeal upheld the sentence (Wainiqolo v The State, Criminal Appeal No. AAU0077 of 2006) and said the total sentence was justified because the offender had committed two violent robberies. Subsequently, the same offender (Wainiqolo) was sentenced in relation to another robbery to 14 years imprisonment by Gates J, concurrent to all existing terms (State v Wainiqolo, Criminal Case No. HAC 015.04S).

[7] In England, the leading Court of Appeal decision on robbery is still the 1975 case of Turner (supra). The English Court of Appeal said that the normal sentence for anyone taking part in a single offence of armed robbery was 15 years and the maximum total sentence for those who committed more than one robbery was 18 years.

[8] In R v Adams and Harding [2000] 2 Cr. App. R(S) 274, the English Court of Appeal said that although Turner provided the starting point, the guidelines now had to be revised upwards in today’s sentencing climate. According to Adams and Harding, a sentence of 25 years may be appropriate for a person found guilty of more than one offence and a sentence of more than 15 years may be appropriate for a person with a previous conviction for armed robbery who is found guilty of a single offence.

[9] From these authorities, the following principles emerge. The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of items taken and the fact that an offence was committed whilst the offender was on bail.

[10] The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved.

[11] I now consider the personal circumstances of each Accused person.

Sakiusa Rokonabete

[12] You are 26 years old and single. Your parents are alive. You said your father is a marine officer. You have 14 previous convictions since 2000, mostly for theft and assault occasioning bodily harm. In 2005 you were convicted for robbery with violence but your conviction was set aside by the Court of Appeal in 2006 and a retrial was ordered (see, Rokonabete v The State Criminal Appeal No.AAU0048/05, 14 July 2006). You committed the offence in this case while on bail awaiting a retrial in another matter. You have been in remand for 13 months and 19 days.

Akuila Dromudole

[13] You are also 26 years old and single. You said you are a student at the FIT, studying electronics. Your parents are elderly and living. You have 7 previous convictions. None is for robbery with violence. On 11 March 2005 you were convicted of damaging property and sentenced to 18 months imprisonment suspended for 3 years. In 2006, you were convicted twice for absconding bail. On 11 July 2008 you were convicted for criminal trespass. I note you committed these offences including the robbery in this case while serving a suspended sentence. You have not made good of the opportunity to reform yourself when you were given a suspended sentence. You have shown a total disregard for law by committing further offences while serving a suspended sentence. You have spent 3 months and 25 days in remand.

Alifereti Tokana

[14] You are 33 years old and single. Your parents are elderly. You have a sister and 5 brothers. You have 31 previous convictions since 1991. I disregard convictions that are more than 10 years old. Between 2000 and 2008 you have 7 convictions, including two for robbery with violence and one for act with intent to cause grievous harm. You are not a stranger to prisons. The sentences imposed on you so far have not deterred you. You have spent 5 months and 18 days in remand.

Guston Kean

[15] You are 36 years old, and married with three children. Your two daughters and a son are attending primary school. You have attained up to Form 5 education. You are a serving prisoner. You have some convictions which are more than 10 years old and I disregard them. On 7 February 2008, you were sentenced to a total term of 8½ years imprisonment for two separate offences of robbery with violence that you committed in 2005, one of which was a home invasion involving a group of men and physical injury was caused to the occupant (State v Guston Kean Criminal Case No. HAC019/06 Ltk). On 16 April 2008, you were sentenced to 11 years imprisonment for another home invasion robbery involving a group of men (State v Sheped & Ors Criminal Case No. HAC158 of 2007S). The 11 years was made concurrent to the earlier sentence of 8 ½ years imprisonment.

[16] You have shown a total disregard for others security by committing these serious violent offences. I take that you committed the offence in this case while you were on bail for the other offences. You too are not a stranger to the prisons. Obviously, you have not reformed yourself and that your previous sentences have not deterred you from committing further offences. You have clearly demonstrated a propensity to use violence against the members of the public. In this case you have spent 5 months and 28 days in remand.

Mitigating Factors

[17] None of the Accused person has any compelling mitigating factors except for their personal circumstances and the fact that no physical injury was caused to anyone during the robbery.

Aggravating Factors

[18] The aggravating features are common to all 4 Accused persons. The aggravating features are:

• The offence was well planned.
• The offence was committed in a supermarket in the presence of children.
• Some customers including women were robbed.
• Weapons like knives, pinch bar and bottles were used to frighten the employees and customers.
• The offence was committed by a gang of men.
• The robbers were intoxicated.
• Substantial value of cash was stolen.
• None of the cash has been recovered.
• The prevalence of violent robberies in our community.
  

Conclusion

[19] Considering the severity of the offence and need to deter all 4 accused persons from committing further offences, I start with a sentence of 12 years imprisonment. I reduce the sentence by 2 years to take into account the mitigating factors. I add a term of 5 years to reflect the aggravating factors and arrive at a sentence of 15 years imprisonment. I take into account the time spend in remand and reduce Sakiusa Rokonabete’s sentence to 13 years imprisonment, Akuila Dromudole’s sentence to 14 years imprisonment, Alifereti Tokona’s sentence to 14 years imprisonment and Guston Kean’s sentence to 14 years imprisonment. Since the sentences are on the higher side of the tariff, I have decided not to activate Akuila Dromudole’s 18 months suspended sentence for damaging property. I have also decided not to fix any term of imprisonment. I now consider whether Guston Kean’s sentence should be made concurrent to his existing prison sentence.

[20] Robbery with violence is a crime against person. Generally, consecutive sentences should be imposed for separate escapades of violence particularly if the later offences are committed when the offender was on bail. In such cases, concurrent sentences would only encourage the offender to make criminal hay while the sun shines.

[21] However, I am required by law to consider the aggregate sentence in order to ensure that it is just and appropriate. The court must step back and take a last look at the total just to see if it looks wrong. If, after applying the totality principle, the total overall sentence for all the offences, would have a crushing effect on the offender, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed (Mill v Queen (1988) 166 CLR, Joji Waqasaqa v The State Criminal Appeal No. CAV0009 of 2005S, Supreme Court, 8 June 2006).

[22] The option of partial concurrency is the preferable course whenever practicable. Section 28(4) of the Penal Code provides for this course.

[23] In regard to Guston Kean I make 5 years concurrent and 9 years consecutive to the existing prison sentences. The effect of this order is that Guston Kean’s aggregate sentence is 20 years imprisonment (11 plus 9) for 4 separate violent robberies with similar aggravating features. I am satisfied that the term of 20 years imprisonment is just and appropriate sentence for Guston Kean.

[24] In summary the sentences are:

Sakiuasa Rokonabete – 13 years imprisonment.

Akuila Dromudole – 14 years imprisonment.

Alifereti Tokona – 14 years imprisonment.

Guston Kean – 14 years imprisonment of which 5 years is made concurrent and 9 years consecutive to the existing imprisonment sentence.

[25] The sentences imposed in this case should not only operate as a deterrence for the Accused persons but should also send a stern message to all those who might consider committing similar offence.

[26] All Accused persons are advised that they have a right of appeal to the Court of Appeal with the leave of that court within 30 days from this sentence.

Daniel Goundar
JUDGE

At Suva
Monday 15th September, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
All 4 Accused in Person