State v Nataruku [2008] FJHC 244; HAC113.2008 (2 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 113 of 2008

STATE

V

KELEMEDI NATARUKU

Hearing: 2nd October 2008
Sentence: 2nd October 2008

Counsel:Mr. L. Fotofili for State
Ms R. Senikuraciri for Accused

SENTENCE

Kelemedi Nataruku, you have pleaded guilty to a charge of assault with intent to rob contrary to section 293(3) of the Penal Code. On the 12th of June 2008 you with another, entered the house of Vincent Jiare Savike, a 12 year old boy, tied his hands up with phone charger wire, and got a bag inside the house packing it with two dvd decks, and a radio, with the intention of taking it away. You asked Vincent where the money was kept in the house and when he said he did not know, you blindfolded him. You were disturbed by the police and you ran away without taking the items. Under caution you admitted the offence.

You have 25 previous convictions with a 2005 conviction for robbery with violence. You are serving a 15 month term imposed in July 2008 for assault occasioning actual bodily harm. Victim impact statements tendered by the State show that the complainant received no physical injuries but was mentally shocked by the incident. You have apologized to him and to his father and they were both in court. They have informed me that they accept your apology.

The maximum sentence under section 293(3) of the Penal Code is 10 years imprisonment. It was increased from 5 years in 2003. This is evidence of a parliamentary intention that sentences for this offence should be increased by the courts.

A recent case of State v. Panapasa Sulua [2005] HAC0006J.2005S under the same section, led to a sentence of 4 years imprisonment. In that case there was a guilty plea, a vulnerable (female witness) and actual violence with serious injuries. Gates J imposed the 4 year term on the 20 year old offender who had previous convictions.

In this case I pick a starting point of 4 years imprisonment. That reflects the seriousness of the offence. Aggravating factors are the age and vulnerability of the victim, the use of the telephone wire and blindfold to frighten and restrain the victim and the fact that this was a home invasion. That would increase the sentence to 8 years.

In your favour is the letter from the pastor at prison, who says that you have responded to the rehabilitation "yellow ribbon" campaign in prison, and indeed have become an ambassador for the programme. Also in your favour is the apology to the victim. I give much weight to this apology as it is a genuine reflection of remorse and a desire to make amends. Finally, I take into account your wife’s asthmatic condition, and your guilty plea. I arrive at a sentence of 3 years imprisonment. It is a year less than Panapasa Sulua but that sentence is a reflection of the serious injuries caused to the victim in that case.

You are serving a 15 month term from July 2008. If you had been sentenced shortly after you committed this offence in June, your sentence would have run from June. Further, a consecutive term would lead to a term which is excessive in total. For these reasons I order that your 3 year term be served concurrent to the term you are currently serving.

You are sentenced to 3 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
2nd October 2008