State v Delana [2010] FJHC 22; HAC190.2008; HAC108.2009; HAC113.2009; HAC126.2009 (1 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 190 of 2008
Criminal Case No: HAC 108 of 2009
Criminal Case No: HAC 113 of 2009
Criminal Case No: HAC 126 of 2009

THE STATE

V

TIMOCI DELANA

Hearing: 28th January 2010
Sentence: 1st February 2010

Counsel: Mr. S. Vodokisolomone for State
Ms S. Vaniqi for Accused

SENTENCE

[1] Timoci Delana, you have pleaded guilty to the charges contained in four separate Informations filed against you by the Director of Public Prosecutions. I am satisfied that you entered your guilty pleas freely and voluntarily. I record conviction against you in respect of each charge.

Facts

[2] In Case No: HAC 190/08, you are convicted of one count each of robbery with violence, damaging property and unlawful use of motor vehicle. The facts are that on 14 August 2008, at about 3.30am, you with four other men, armed with cane knives, iron rod and a pinch bar broke and entered the dwelling house of Vijay Chand at Fulaga Street, Samabula.

[3] The victim was 63 years old at the time of the offence. He was asleep when the intruders entered into his property. The intruders first broke the padlock and then they broke the burglar grill to enter the victim’s house. The victim woke up and came to the main entrance when he was confronted by the intruders. He rushed into his bedroom and locked the door. He tried to raise alarm by using his telephone. The intruders forced open the victim’s bedroom door and struck him on his head with a pinch bar. The intruders threatened the victim and his wife and demanded money from them.

[4] They forcefully took $3025.00 cash and jewelleries worth $3000.00. They fled the scene in the victim’s vehicle. The vehicle was abandoned in Cunningham Stage 1. During the robbery the victim was injured. He received a 2.5cm x 0.5cm skin deep wound on his head, a 3cm x 0.5cm abrasion on the right forearm and 1cm x 0.5cm bruise on the upper lip. The total damage to the victim’s property was $14,465.00.

[5] On 13 August 2008 you were interviewed under caution by the police. You confessed to the offences. On 26 August 2008, the Magistrates’ Court remanded you in custody until 9 September 2008 when you were granted bail. You remained on bail in this matter until 22 June 2009 when you failed to appear in court and a warrant of arrest was issued against you. On 30 October 2009, you were arrested. The Court refused you bail. You have been in remand since that date.

[6] In Case No: HAC 108/09, you are convicted of one count each of robbery with violence and unlawful use of motor vehicle.

[7] The facts are that on 4 September 2009 at around 2.30am, you with a group of men entered the house of Satish Chandra at Ratu Dovi Road, Laucala Beach Estate. Satish Chandra was 58 years old at the time of the offence. He resided with his family. They were asleep when the intruders attacked them. The victim was awoken by the noise of the intruders trying to break into his house. He saw the intruders at the main door of his house. The intruders smashed the glass window with a pinch bar. They forcefully entered the house and threatened the occupants to keep quiet. The intruders stole jewelleries and electronic items to a total value of $1,700.00 before fleeing the scene in the victim’s vehicle.

[8] In Case No: HAC 113/09 you are convicted of one count each of robbery with violence and unlawful use of motor vehicle.

[9] The facts are that on 29 September 2009 at around 3am you with a group of men entered the home of Jag Jeet Singh at Maqbool Road, Nadera. The victim was asleep with his family when he was awoken by noise coming from the main entrance of his house. He saw the intruders trying to forcefully open the glass door.

[10] The victim picked up a timber and hit the hand of one of the intruders to detract them. The intruders, however, managed to force their way into the victim’s house and assaulted him on the face. The victim managed to escape and lock himself in his bedroom. The intruders forced open the bedroom door and threatened the victim and his family. The intruders were armed with a pinch bar and they covered their faces with cloth. They stole cash and valuable items to a total value of $1,900.00 and then fled in the victim’s vehicle.

[11] The vehicle was abandoned in a damaged state in Narere. The total damage to the vehicle was $10,000.00.

[12] You were arrested and interviewed under caution. You told the police your role was only in the breaking of the door of the victim’s house and driving the getaway vehicle. You received $160.00 as your share in this robbery.

[13] In Case No: 126/09 you are convicted of one count each of robbery with violence and unlawful use of motor vehicle. The facts are that on 24 September 2009 at around 2.30am you forcefully entered Tasneen Ali’s house with a group of men. The security grills and the door of the victim’s house were forcefully opened by the intruders. The burglar grills and the door were damaged. The intruders threatened the victim and stole substantial value of cash and items before fleeing in the victim’s vehicle. The total value of stolen items was $61,480. You were arrested and interviewed under caution. You confessed to the offences. A few items were recovered in this case.

Personal Circumstances of the Offender

[14] I take into account your personal circumstances. You are 30 years old and married. You support your wife and elderly parents. You farm for living and earn about $150 weekly. You say you are the sole breadwinner for your family.

Previous Character

[15] You have a total of 50 previous convictions since 1997. I disregard convictions which are more than 10 years old. In the last 10 years you had 23 previous convictions mostly for dishonesty offences. You have one conviction for a robbery with violence in 2000 for which you served four years imprisonment. Your last conviction was in 2007 for a drug offence for which you served a sentence of four months imprisonment.

[16] Because of your criminal record, you are not entitled to any credit that is given to an offender with previous good character.

Maximum Penalty

[17] The maximum penalty prescribed by Parliament for the offence of robbery with violence is life imprisonment, for the offence of damaging property, is two years imprisonment, and for the offence of unlawful use of motor vehicle, is six months imprisonment.

Sentencing Principles

[18] This case must be considered in the light of the observations made by the Court of Appeal in the case of Basa v. The State Criminal Appeal No. AAU0024 of 2005. In that case the Court reconsidered 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 which suggested a range of 6 to 8 or more years where there is a greater risk of violence or harm. The Court said:

"In Fiji, the maximum penalty is life imprisonment showing clearly that it is regarded as being in the most serious category of offences. The maximum penalty in England is also life imprisonment and so it may be more appropriate in future to consider English cases as guidance for the appropriate term of imprisonment."

[19] In England the sentencing range is 13 to 16 years imprisonment for robbery in the home involving physical violence. The range after a guilty plea is 10 to 12 years imprisonment. The starting point is justified mainly by the level of violence used to commit the robbery.

[20] In R v. Richardson and Others, the Times, February 10th, 1988 sentences of up to 13 years were held to be right in principle for the defendants who were of previous good character, and who had taken part in a series of robberies on houses where the victims were asleep but were disturbed and attacked with knives. Ewbank J said that home invasion robberies were so serious that a plea of youth or of previous good character was of little relevance, and that where the victims were old, the sentence would be even longer.

[21] In R v. Driscoll 8 Cr. App. R(S) 121, the English Court of Appeal held that where robbery was committed in the course of a burglary of a home, a 15 year prison term was justified for causing grievous harm to an elderly victim.

[22] Following the decision in Basa, in Maikeli Rawaqa & Segran Murti Criminal Case No. HAC042 of 2004, sentences of 8 years and 10 years imprisonment, respectively, were imposed by this Court for a home invasion robbery where the occupants were threatened with knives by a group of men at night, albeit, no physical injury was caused to any occupant.

[23] In State v Semisi Wainiqolo Criminal Case No. HAC008 of 2005, Winter J made the following observation:

"The English authorities emphasized that for robbery with arms offenders might expect a sentence in the order of 13 to 15 years jail."

[24] In Rokonabete & Ors v State Criminal Case No: HAC 118 of 2007 this Court after reviewing cases from England on robbery with violence, said:

"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.

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."

[25] I apply these principles to this case.

Aggravating Features

[26] There are some disturbing aggravating features present in this case. The victims were attacked in the security of their homes at night while they were asleep. They were threatened with knives and pinch bars. Two of the victims were elderly persons. One of them received physical injuries. You said it was not you but your co-accused who struck the victim and that you had a minimal role in the robberies. However, I do not consider your culpability is lessened just because you did not strike the victim. You agreed with others to attack homes knowing the occupants would be present. You agreed to the use of weapon to threaten your victims. You must have contemplated use of physical violence if the occupants were going to resist. Even after the occupants had woken up, the intruders pursued them to accomplish their criminal intentions.

[27] Items of substantial value were stolen from the victims. Substantial damages were done to the victims’ homes and vehicles. Substantial items remain unrecovered. The victims have not been repatriated for the loss they have suffered.

[28] The last three robberies were committed while you were on bail for the first offence of robbery. You showed a total disregard for the law.

Mitigating Features

[29] You have pleaded guilty. Your guilty pleas were made when you realized your prospect of securing bail after fresh charges arose against you was slim. Although your guilty pleas are late, I give weight to your pleas of guilty because you have saved court time and resources. You personally addressed this Court and asked for forgiveness.

[30] You cooperated with the police by confessing to the offences and you also disclosed the names of your accomplices to assist the police investigation.

Time in Custody

[31] You have been in custody since October 2009 and I take this into account in sentencing you.

Sentence

[32] For the offence of robbery with violence I start with 10 years imprisonment and add 4 years to reflect the aggravating factors. For the time spent in custody and for the mitigating factors I reduce the sentence by four years and arrive at a term of 10 years imprisonment. For each offence of robbery with violence you are sentenced to 10 years imprisonment.

[33] For the offence of damaging property you are sentenced to 1 year imprisonment.

[34] For the offence of unlawful use of motor vehicle you are sentenced to 4 months imprisonment.

[35] In imposing these sentences, I have borne in mind the need to protect the public, the need to deter you and others from committing offences of this nature, and the need for the court and the community to denounce the commission of offences involving use of violence. Offenders who operate in gangs and use weapons to attack occupants of homes to rob should be afraid to come to court. In all circumstances I consider your sentences to be just and appropriate. If I order all the sentences to be served consecutively, the total sentence could have a crushing effect on you and take away any prospect for reform. For this reason I order all the sentences to be served concurrently.

[36] In summary the sentences are:

HAC 190 of 2008

1st Count: Robbery with Violence – 10 years imprisonment

2nd Count: Damaging Property – 1 year imprisonment

3rd Count: Unlawful Use of Motor Vehicle – 4 months imprisonment

HAC 108 of 2009

1st Count: Robbery with Violence – 10 years imprisonment

2nd Count: Unlawful Use of Motor Vehicle – 4 months imprisonment

HAC 113 of 2009

1st Count: Robbery with violence – 10 years imprisonment

2nd Count: Unlawful Use of Motor Vehicle – 4 months imprisonment

HAC 126 of 2009

1st Count: Robbery with Violence – 10 years imprisonment

2nd Count: Unlawful Use of Motor Vehicle – 4 months imprisonment

[37] The total sentence you will have to serve is 10 years imprisonment effective from today. You may appeal against your sentence within 30 days with the leave of the Court of Appeal.

Daniel Goundar
JUDGE

At Suva
1st February 2010

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