State v Sheped [2008] FJHC 82; HAC158S.2007 (16 April 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS

CRIMINAL JURISDICTION
AT SUVA

Criminal Case No. HAC 158 of 2007

BETWEEN:

THE STATE

AND

DICK SHEPED
MAHENDRA JEET MAHARAJ
GUSTON FREDERICK KEANE

Counsel: Mr. A. Rayawa for the State
Mr. K. Marawai for the 1st and 2nd Accused
3rd Accused in Person

SENTENCE

1. You have all been found guilty of one count of Robbery with Violence, contrary to section 293(1) of the Penal Code Cap 17.
   
2. You trial lasted 6 days in the High Court. You were convicted by the Court, after the unanimous verdict of the assessors, that you were all guilty as charged. The court will sentence each of your according to law.
   
3. The maximum liable punishment for robbery with violence under our law is life imprisonment: section 293(1) of the Penal Code Cap 17. There has never been a person in recent history in this country who has been sentenced to life imprisonment for the offence of robbery with violence. The severity of the punishment shows that seriousness of the offence and accused persons found guilty of such crime can expect sentences to match their criminal conduct.
   
4. Having sat through the trial and having heard the facts in this case I would pick the starting point of my sentence determination as 7 years imprisonment. This is clearly at the high end of the tariff for sentence adopted by the Court of Appeal in Basa v. The State [2006] FJCA 23. But the level of premeditation, planning and violence evident in this case demands that a high starting point is proper: Tomasi Vosalevu v The State [2006] FJCA 29.
   
5. The following High Court cases were also considered in the determination of the sentences in this case: State v Semisi Wainiqolo [2006] FJHC 53; Taito Rawaqa v The State (2007) HAA 118 of 2007; State v Ilaisa Cava, HAC 007 of 2000.
   
6. This starting point above applies to all three accused persons. On this basis there will be no disparity in sentencing base. The fact that there will be differences in the terms of imprisonment imposed on each of the accused is due to the application of the different mitigation, aggravating factors and the relevant public interest factors that the court considers is relevant to each accused.
   

Common Aggravating factors

7. I now set out the aggravating factors common to the three accused, which the State submits and the Court accept. These are:
   
   • A home invasion where the privacy of Garba Nand’s family were violated
   • Substantial damage were inflicted on the victim’s property – repairs cost $1800
   • Use of weapons – knives, bolt cutters, pinch bar to facilitate the crime
   • Actual violence were perpetrated on Garba Nand and threats to kidnap their young son were made to force them to reveal where the money were kept in the house
   • Substantial amount of cash and other property were stolen
   • There were no recovery of money or property
   • Effect on the family members hard to fully comprehend without technical evidence, but I accept that wife now has difficulty in sleeping most nights and the child of the victim are affected in their school work.
     
8. There will be other aggravating factors relevant to each accused and I will state this in determining the sentence for each accused.
   

Sentence for Dick Sheped

9. Your starting point is 7 years imprisonment. On the facts here you were an important link in the planning cell for the robbery with violence that was carried out at Garba Nand’s residence at Lot 27 Kalia court, Nakasi. You house was used for the discussion to take for the robbery with violence.
   
10. In mitigation your counsel stated the following on your behalf:
    
    • 37 years old, married with 4 children
    • Sole breadwinner for your family
    • You are sorry for what you have done
    • You are a first offender
    • Seek mercy of the court
      
11. For your mitigation I would reduce your sentence by 3 years to 4 years imprisonment.
    
12. For the aggravating factors set out above, I would add 2 years. Your sentence would be 6 years imprisonment. In your case Dick Sheped, because you are a first offender and because I am prepared to believe you that you will not re-offend and the need for this court to consider the objective principle of rehabilitation, I would further reduce your sentence by 2 years.
    
13. This will mean that your sentence is 4 years imprisonment effective from today.
    

Mahendra Jeet Maharaj

14. Your sentence starting point is 7 years imprisonment.
    
15. The following factors have been urged as mitigating factors on your behalf by your counsel:
    
    • You are 38 years old, married with 3 young children
    • You have a dependent old mother who is sickly
      
16. For the above mitigating factors I would reduce your sentence by 1 year to 6 years imprisonment.
    
17. In addition to the aggravating factors set out in paragraph 7 above, the following are specific to you:
    
    • You were one of the principal planner and facilitator for this robbery with violence case. The evidence in this trial shows how critical the role you played; it contributed to methodical and systematic manner in which the extraction of robbers were carried after their robbery;
      
    • Your recent criminal records reveal that you have little regard whatsoever for the rights of people to their privacy and to enjoy their property without being interfered with.
      
18. I would increase your sentence by 3 years for your aggravating factors.
    
19. Your sentence is 9 years imprisonment effective from today.
    
20. I will not fix a minimum term because this court is hopeful that as you stand at this cross road in your life, you will carefully consider your ways and choose to follow the right way after serving your sentence.
    

Guston Frederick Kean

21. The start of your sentence determination is 7 years imprisonment.
    
22. In mitigation you told the court that you are 36 years old, married with 3 children. You also told the court that you are currently serving a prison term of 8 ½ years and you ask the court to give you a concurrent sentence. Your antecedent record prepared by the police tendered in court show that it is for two counts of robbery with Violence and one count of Shop Breaking Entering and Larceny and that you were sentenced at the High Court at Lautoka on 7 February 2008. From the above, it can be said that for this accused person there are no mitigating factors to be considered. The same mitigating factors he gave in his case in Lautoka, just two months, he also gave in this case.
    
23. The aggravating factors in your case are those referred to in paragraph 7 above. However the following are additional and specific to you Guston Kean:
    
    • From the evidence in this trial, you were the leader or one of the leaders of the group of men that smashed into and robbed Garba Nand at his home on the night in question;
      
    • From your own caution interview statements to the police, it is evident that you are a professional robber. You have specially made clothing as revealed in your statements in your caution interview to effect your criminal activity.
      
    • Your record of committing violent criminal activity is shameful to say the least. While this court believes that while there is life there is hope, your record suggests that there is very little hope in you reforming your ways.
      
24. For the above aggravating factors I would increase your sentence by 4 years to 11 years imprisonment effective from today. This sentence is concurrent to your current term of imprisonment.
    
25. Under section 33 of the Penal Code Cap 17, I may consider fixing a minimum term of imprisonment to be served by this accused. I consider the following factors relevant in my fixing a minimum term to be served:
    
    • Home invasion is far too prevalent and the people no longer feel safe in their home in our community. It is no longer their castle but a place where great violence and the realization of the victim’s worst nightmare is visited on them;
      
    • The court must not resile from passing long custodial sentences to ensure that offenders are punished their offending otherwise the use of concurrent sentences will in some instances result in the accused not properly punished for what he did in this case;
      
    • Public interest demand that people who do the crime do the time provided in law, especially where they have shown that they do not have considerations towards others in the community in which they live in;
      
    • The Court need to assure the victims that their interest is not lost in the determination of the court in reaching its sentencing decisions. Fairness and justice demands that the victim’s interest and consideration be also factored in sentence determination.
      
26. In the light of the above consideration, I would fix the minimum term of imprisonment to be served by this accused person, at 9 years imprisonment.
    
27. In fixing the minimum term of imprisonment for this accused person I am exercising the court’s direction in order to achieve in totality, a sentence which will add something to the terms of imprisonment this accused is presently serving, without which he would receive no effective punishment at all for this offence: State v Semisi Wainiqolo (supra)
    

ORDERS

28. The Court will make the following orders:
    

1. That Dick Sheped is hereby sentenced to 4 years imprisonment effective from today;
   
2. That Mahendra Jeet Maharaj is hereby sentence to 9 years imprisonment effective from today;
   
3. That Guston Frederick Kean is hereby sentenced to 11 Years imprisonment effective from today, concurrent to his current term of imprisonment. This accused must serve a minimum of 9 years of his term of imprisonment in this case, which is fixed under section 33 of the Penal Code Cap 17.
   

Isikeli Mataitoga
JUDGE

At Suva
16 April 2008.