State v Nagalu [2010] FJHC 209; HAC122.2008S (24 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 122 OF 2008S

STATE

V

1. EPARAMA NAGALU
2. JONACANI NACANI
3. PENIJAMINI TUINAVITI
4. SAMUELA VUNISEI

Counsels: Ms. R. Drau for the State Accused No. 1 in Person
Mr. V. Vosarogo for Accused No. 2
Accused No. 3 in Person
Accused No. 4 in Person

Sentence: 24th June 2010

SENTENCE

1. After a trial lasting seven days, the assessors found each of you guilty as charged on the following counts, in the information:

(i) Count No.1 - "robbery with violence", contrary to section 293(1)(b) of the Penal Code, Chapter 17;

(ii) Count No.2 - "unlawful use of motor vehicle", contrary to section 292 of the Penal Code;

(iii) Count No.3 - "robbery with violence", contrary to section 293(1)(b) of the Penal Code;

(iv) Count No.4 - "damaging property", contrary to section 324 of the Penal Code;

(v) Count No.6 - "act with intent to cause grievous harm", contrary to section 224(a) of the Penal Code; and

(vi) Count No.7 - "larceny", contrary to sections 259(1) and 262(2) of the Penal Code;

2. A judgment was delivered by the court, in which it agreed with the assessors’ opinion, and found each of you guilty as charged on counts No. 1,2,3,4, 6 and 7, and convicted you accordingly, on those counts. You were all acquitted on count No. 5.

3. The brief facts of the case were as follows. On the early morning of 5th July 2008, between 1am and 2am, Mr. Ishwar Narayan and his wife were yarning before they went to sleep. They suddenly heard noises outside their house. Suddenly, 5 to 6 men broke into their house, armed with pinch bars, a garden fork and stones. They were all masked. They threatened the couple with death if they don’t surrender their properties to them. Mr. Narayan told the robbers to take whatever they want, but to spare their lives. The robbers then ransacked their house, and stole the properties itemized in count No.1. The total value of the properties stolen were FJ$5,429.00.

4. The robbers forced Mr. Narayan to give them his car keys. They took it, and fled from his house, in his Landcruiser registration number "MEDIA 1". The robbers fled to Vatuwaqa, realized that what they stole was not enough, planned to do a second robbery that night. They drove "MEDIA 1" towards Suva Town House, and parked in the front just before 3am. All the robbers, except the driver, went into the reception area, and broke open a drawer. They stole $600 therefrom. Vitinia Tuisavura, the receptionist, at the time, intervened to no avail. A robber snatched her gold chain, worth $150, from her neck. The robbers later fled Suva Town House in "MEDIA 1".

5. They drove around Suva, and onto Princess Road, Tamavua after 3am, that morning. At the new American Embassy, a police car confronted and pursued them. The registration number of the police car was GN 356, and it was driven by Acting Corporal Mitieli Divarua, with Detective Constable Sachin Chand, in the front passenger seat. The two police officers pursued the robbers in their vehicle through Princess Road, towards Kaba Street, then Lakeba Street, and back to Kaba Street. At Kaba Street, "MEDIA 1" was driven by the robbers directly into a head-on collision with police car, GN 356.

6. The two police officers were trapped in the police car. The robbers got out of "MEDIA 1", armed with pinch bars and pieces of timber. They smashed the police car’s windscreen. Constable Sachin fled to safety. The robbers attacked Acting Corporal Mitieli Divarua with the pinch bars and pieces of timber. He was seriously injured as a result. A while later the robbers fled in "MEDIA 1", and abandoned the same near Nasinu Secondary School, in Kinoya. The damage to the police vehicle was estimated at $2,500. The robbers also stole "MEDIA 1’s" Kenwood Car Stereo, and CD charger, valued at $2,000.

7. The court has noted your previous convictions. Accused No.1, you have 14 previous convictions since 1997, although you challenged the correctness of your alleged four convictions in 2007, at Nausori Magistrate Court. The prosecution hasn’t proven those disputed convictions, and as a result, I will only recognize your admitted convictions to the year 2001. Accused No.2, you have 95 previous convictions going back to 1996. I will only take into account your conviction in the last 10 years, which is 93. Accused No.3, you have 13 previous convictions since 2001, and 10 of them were for robbery with violence. Accused No.4, you have 11 previous convictions since 2000, and one of them was for robbery with violence and act with intent to cause grievous harm. The court has read and considered your antecedent reports. It has also carefully considered your verbal plea in mitigations.

8. Each of you have been found guilty of six criminal offences. The most serious one was "robbery with violence", followed by "act with intent to cause grievous harm", then "larceny", then "damaging property", and the least serious was "unlawful use of motor vehicle". We will therefore start with the most serious offence to the least serious one.

9. "Robbery with Violence" carries a maximum penalty of life imprisonment. The tariff is a sentence between 6 to 14 years imprisonment: see State v. Sakiusa Rokonabete & Others, Criminal Case No. 118 of 2007, High Court, Suva; Sakiusa Basa v. The State, Criminal Appeal No. AAU 0024 of 2005, Fiji Court of Appeal; Semesi Wainiqolo v. The State, Criminal Appeal No. AAU 0027 of 2006, Fiji Court of Appeal. The actual sentence passed will depend on the presence or otherwise, of strong mitigating and/or aggravating factors.

10. "Act with intent to cause grievous harm", carries a maximum sentence of life imprisonment. However, when reviewing the sentence in these types of cases in State v Maba Mokobula, Criminal Appeal No. HAA 0052 of 2003S, Her Ladyship Justice Shameem said, that the tariff was a sentence between 6 months and 5 years imprisonment. The actual sentence will again depend on the presence or otherwise of strong mitigating and/or aggravating factors.

11. "Larceny", carries a maximum sentence of 5 years imprisonment. The tariff is 2 to 9 months imprisonment for a first offence, and a sentence exceeding 9 months imprisonment, for a second conviction: see State v Pauliasi Tuimouta, Criminal Case No. HAC 078 of 2008, High Court, Suva. Again the actual sentence passed will depend on the mitigating and aggravating factors.

12. "Damaging Property", carries a maximum sentence of 2 years imprisonment, and "unlawful use of a motor vehicle", carries a maximum penalty of 6 months imprisonment.

13. The aggravating factors for all four accuseds were as follows:

(i) Home Invasion Attack: This was a cowardly organized home attack on a couple, who were about to go to sleep between 1am to 2am on 5th July 2008. The couple were rightly at their residence, and after a hard day’s work, were about to rest and sleep. But you four accuseds choose to upset their peace, cowardly broke into their house with pinch bars, a garden fork and stones, and threatened them with death, if they don’t part with their properties. The couple, under extreme duress, submitted to your demands, and then you four, as a group, stole $5,429.00 worth of properties from them. For this crime, you four must surely pay.

(ii) To add salt to wounds, you four, as a group, demanded the couple’s car keys, and fled in their landcruiser registration No. "MEDIA 1", and used the same as a getaway vehicle, during the night. When the same was recovered in the morning, it was extensively damaged. You showed a total disregard to the couples’ right to own and operate their vehicle, and to enjoy their property rights.

(iii) In addition, by stealing $5,429 worth of properties from the Narayans, you, as a group showed utter disrespect to their property rights. You obviously want to live life on the backs of others, and to have a free ride.

(iv) Not being satisfied with the loot from the Narayan’s robbery, you freely choose to attack and rob Suva Town House Motel, on the same night. You obviously have no regard for other people’s property rights. You, as a group, threatened the Motel’s receptionist, and stole $600 and her gold chain, worth $150, from her. You later fled in "MEDIA 1".

(v) You were confronted by Acting Corporal Mitieli Divarua and Detective Constable Sachin Chand on Princess Road, Tamavua, on the same night, after fleeing from Suva Town House Motel. The police officers were travelling in a police car registration No. GN 356. You, as a group, were travelling in Mr. Narayan’s "MEDIA 1". When cornered at Kaba Street, Tamavua, you, as a group, decided to ram "MEDIA 1" head-on with police car GN 356. Both vehicles were extensively damaged, as a result. Once again, it demonstrated your utter disrespect to other’s property rights.

(vi) You, as a group, then proceeded to smash the police car’s windscreen, causing $2,500 damage. You, as a group, didn’t stop there. You proceeded to attack Acting Corporal Mitieli Divarua with iron rods, and pieces of timber. As a result of the attack, he suffered serious injuries.

(vii) By attacking Mr. and Mrs. Narayan, by threatening Suva Town House Motel receptionist Vitinia Tuisavura and by seriously injuring Acting Corporal Mitieli Divarua, you, as a group, have shown a total disregard to the personal safety of others.

(viii) After doing all the above, you had to steal Mr. Narayan’s Kenwood car stereo and CD charger, worth $2,000. You had no regard for his property rights.

14. In dealing with the mitigating factors, I will deal separately with each accused’s mitigating factors. I will start with Accused No. 1’s [Eparama Nagalu] mitigating factors:

(i) You are 33 years old, with the responsibility to look after 2 young children, aged 5 and 6 years old;

(ii) you reached Form 5 level education, and was a mechanic by profession, earning $160 per week previously;

(iii) you are presently serving 6 years imprisonment from 18th December 2009, and you are asking for a concurrent sentence.

15. The mitigating factors for accused No. 2 [Jonacani Nacani] were as follows:

(i) You are 30 years old, married with no children, and was the sole breadwinner;

(ii) you reside at Jittu Estate and a market vendor by profession;

(iii) it is acknowledged that you have become religiously minded since May 2009, and has actively engaged yourself in more religious pursuits;

(iv) you have been in custody for 2 months since 20th April 2010.

16. The mitigating factors for accused No. 3 [Penijamini Tuinaviti] were as follows:

(i) You are 21 years old, married with 2 young kids, aged 3 years old and 2 months;

(ii) reached Form 4 level education;

(iii) you are a farmer, planting pineapples and cassava;

(iv) you have been remanded in custody since March 2010, that is, approximately 4 months.

17. The mitigating factors for accused No.4 [Samuela Vunisei] were as follows:

(i) You are 27 years old, married with 1 son aged 5 years old;

(ii) you reached Form 4 level education, and you were a labourer by profession, supporting your wife and son;

(iii) you ask for a lenient sentence.

18. Having carefully considered your previous convictions, and pursuant to section 11 of the Sentencing and Penalties Decree 2009, I pronounce each of you to be a habitual offender. In sentencing each of you today, the primary focus will be the protection of the community.

19. Given that your offendings were committed as a group, I will also sentence each of you as a group. In a crime committed by a group, the fact that one may commit a minor role, as opposed to the ones committing a major role, you are each deemed to be responsible and liable for the crime, irrespective of your individual roles, because you each intended to commit the crime as a group, and acted together in committing the same.

20. For each of you on count No.1, I start with 12 years imprisonment. I add 5 years for the aggravating factors, making a total of 17 years imprisonment each. I deduct 3 years from the 17 years for the mitigating factors, leaving a balance of 14 years imprisonment. You are each sentenced to 14 years imprisonment on count No.1.

21. For count No. 2, you are each sentenced to 3 months imprisonment.

22. For count No. 3, I sentence each of you in the same way I sentence each of you in count No. 1. You are therefore sentenced to 14 years imprisonment each on count No.3.

23. On count No. 4, you are each sentenced to 9 months imprisonment.

24. On count No. 6, for each of you, I start with a sentence of 4 years imprisonment. I add 2 years prison for the aggravating factors, making a total of 6 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 5 years imprisonment. I sentence each of you to 5 years imprisonment on count No. 6.

25. On count No. 7, I sentence each of you to 9 months imprisonment.

26. In summary, for each of you, the sentences are as follows:

Count No. 1 - 14 years imprisonment

Count No. 2 - 3 months imprisonment

Count No. 3 - 14 years imprisonment

Count No. 4 - 9 months imprisonment

Count No. 6 - 5 years imprisonment

Count No. 7 - 9 months imprisonment

A consecutive sentence will be unjust on each of you. Although, each of you are a threat to the welfare of the community, a total sentence of 34 years will be unjust to each of you. Bearing in mind the need to protect the community, and from the principles of the totality of sentencing, I will make all the above sentences concurrent to each other, that is, a total sentence of 14 years imprisonment for each of you. Each of you are therefore to serve a total sentence of 14 years imprisonment each, effective forthwith.

27. It must be noted that, since each of you have been classified as a habitual offender, the 14 years imprisonment imposed above, was primarily designed to protect the community, pursuant to section 12 of the Sentencing and Penalties Decree 2009. And in that light, and pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, I fix a non-parole period for each of you of 11 years imprisonment, that is, you are each not eligible for parole until you have each served 11 years imprisonment.

28. There is another matter. Accused No.1 was already serving a sentence of 6 years imprisonment from the 18th December 2009, for a "robbery with violence" matter [see Criminal Case No. HAC 177 of 2008, High Court, Suva]. The effect of this 14 years imprisonment added to the above 6 years imprisonment, will be a total sentence of 20 years imprisonment. This will be unjust on accused No. 1. Bearing in mind the principle of totality of sentencing, I will order his 14 years imprisonment to be partly concurrent and partly consecutive on his previous 6 years imprisonment. I will order that 10 years of accused No. 1’s 14 years imprisonment be made consecutive to his previous 6 years imprisonment, and 4 years of his 14 years imprisonment will be concurrent to his present 6 years prison term.

29. In summary, all the accuseds will serve a total sentence of 14 years imprisonment. For accused No. 2, 3 and 4, each will get a non-parole period of 11 years imprisonment.

30. For accused No. 1, he is already serving 6 years imprisonment in High Court Criminal Case No. HAC 177 of 2008S from 18th December 2009. His 14 years imprisonment sentence from this case will be partly concurrent and partly consecutive to his present 6 years sentence, given the principles of the totality of sentencing. I order 10 years of the 14 years prison sentence to be made consecutive to the present 6 years prison sentence, making a total of 16 years imprisonment, from 18th December 2009. The 4 years balance of the 14 years prison sentence is concurrent to this present prison term.

31. In summary for accused No. 1, as a result of paragraph 28 and 30 above, he is to serve a total sentence of 16 years imprisonment from 18th December 2009. Since he is a habitual offender, he is not eligible for parole until he’s served 12 years imprisonment. This is essential in the interest of protecting the public.

Salesi Temo
ACTING JUDGE

AT Suva
24th June, 2010