State v Gauna [2010] FJHC 349; HAC190.2008 (19 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 190 OF 2008

BETWEEN:

THE STATE

AND:

VILIAME GAUNA

Counsel: Ms. N Ratakele with Ms. Low for State
Accused in Person

Date of Hearing: 16th August 2010
Date of Sentencing: 19th August 2010

SENTENCE

[1] VILIAME GAUNA you had been convicted on three Counts, namely Robbery with Violence, Damaging Property and Unlawful use of Motor Vehicle following a trial before Assessors. Now I proceed to impose sentence on you.

RELEVANT ALLEGATIONS OF FACT

[2] You were charged with one count of Robbery with Violence contrary to Section 293 (1) of the Penal code, one Count of Damaging Property contrary to Section 324 (1) of the Penal Code and one Count of Unlawful use of Motor Vehicle contrary to Section 292 of the Penal Code.

[3] The facts are that on the 14th August 2008 at about 2.00am you with four other men armed with pinch bars, cane knives, iron rod broke into a dwelling house at No. 5 Fulaga Street Samabula, Suva where the victim Vijay Chand was residing.

[4] The victim Vijay Chand was 63 years old at the time of the incident was living with his wife and the daughter in the said house. You with others first broke into the house by breaking the burglars grill and gain entry to the house. When you were breaking open the other doors the victim Vijay Chand had called his cousin and tried to prevent you from entering his bedroom. You forced yourself, after breaking the door and attacked the victim who was 63 years old with a pinch bar on his head.

[5] You with the others after attacking the victim Vijay Chand demanded money from them. While the victim was bleeding the others were kept on fear of death.

[6] You and others forcibly broke open the drawers and took $3000 worth of jewelleries and cash $2000. The wife of the victim Bimla Wati heard saying in the Court that she was crying and begging not to harm the victim and herself.

[7] During the Robbery the victim Vijay Chand had received an injury on his head; subsequently he was treated at CWM hospital.

SUBMISSION BY THE STATE

[8] 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.

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.

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).

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.

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.

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 grater. 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.

OFFENDERS SUBMISSION

[9] You wanted the Court to reconsider the evidence against you.

[10] You are feeling sorry for what the victims went through.

[11] You say you have no hand on the offence.

[12] You say you have a son who is 19 months old.

APPLICABLE LAW

[13] Section 293 (1) (b):

"Any person who robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment".

Section 324 (1):

"Any person who willfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanor, and he is liable, if no other punishment is provided, to imprisonment for two years".

Section 292:

"Any person who unlawfully and without colour of right, but not so as to be guilty of stealing, takes or converts to his own use or to the use of any other person, any draught or riding animal or any vehicle or cycle, however propelled, or any vessel, is guilty of a misdemeanor, and is liable to imprisonment for six months, or to a fine of one hundred dollars, or to both such imprisonment and such fine".

CONSIDERING YOU AS A HABITUAL OFFENDER

[14] Now I am compelled to consider your previous convictions. As per your previous conviction report bearing reference number C.R.O No. F/99561 SS CR 295 – 296/08. You have following convictions:

- 1 conviction for Robbery with Violence
- 1 conviction for Act with Intent to Cause Grievous Harm
- 2 convictions for Resisting Arrest
- 2 convictions for Shop Breaking and Larceny
- 1 conviction for Larceny from Person
- 2 convictions for Burglary
- 2 convictions for Larceny in Dwelling House
- 1 conviction for Bulk Store Breaking Entering and Larceny
- 1 conviction for Office Breaking with intent to Commit Felony
- 1 conviction for Escaping from Lawful Custody.

APPLICABLE LAW

[15] Now I consider Section 10 of the Sentencing and Penalties Decree 2009.

"This Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for –

(a) A sexual offence;

(b) Offences involving violence;

(c) Offences involving robbery or housebreaking;

(d) A serious drug offence; or

(e) An arson offence".

[16] Section 11 states as follows:

"A judge may determine that an offender is a habitual offender for the purposes of this Part –

(a) When sentencing the offender for an offence or offences of the nature described in section 10;

(b) Having regard to the offender's previous convictions for offences of a like nature committed inside or outside Fiji; and

(c) If the court is satisfied that the offender constitutes a threat to the community".

[17] Considering the above sections and your previous conduct and the present I am compel to declare you as a HABITUAL OFFENDER. Otherwise I will be failing my duty towards the reasonable people of our Society.

[18] I must place it on record that I visited towards your previous convictions purely for the purpose of comparing the present offence and your previous conduct and I came to a conclusion as I discussed above. I have not considered your previous convictions as an aggravating factor in this case.

SENTENCING TARIFF

[19] Now I consider the tariff for the offence of Robbery with Violence.

[20] Robbery with Violence carries a maximum punishment of life imprisonment.

[21] In State vs. Sakiusa Rokonabete & others (2008 FJHC 226; HAC 118.2007 (15 September 2008) the Court summarized the principles to be

"The dominant factor in assessing seriousness for any type 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 or 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 the 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 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". (emphasis added)

[22] In State vs. Semisi Wainiqolo HAC008 of 2008; WINTER J made the following observation:

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

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

[24] I consider the above sentencing principles and apply to this case.

[25] The Court with accused, assessors and other Court staff members visited the scene of crime, there I observed that the people are living virtually in a cell. Most of the houses in Suva for that purpose are having too many grills, gates and security systems. When an outsider sees this he might think bad of the people of Fiji. Because of one or two culprits, all people should not be suspected. Further if there is a fire the inmates of many house including the house in question cannot come out easily. People earn and save money to live comfortably without fear. The act of the accused causes severe pain in mind of the people and makes their life especially their retired life impossible.

[26] Considering the nature of the offence and the way it planned and executed I commence the starting point of the sentence at 14 years.

AGGRAVATING FACTORS

[27] I consider the following factors as aggravating factors:

1. It is a well planned robbery.
   
2. You and your gang members are armed with deadly weapons such as pinch bar, cane knife, iron rod etc.
   
3. You entered a dwelling house in the wee hours of the day namely 2.00am.
   
4. You have attacked the victim who was 63 years old.
   
5. You kept the victims wife who is an old lady and their daughter in a fear of death.
   

[28] Considering the above I add 5 years, now your sentence is 19 years.

DAMAGING PROPERTY

[29] Damaging Property carries a maximum penalty of two years.

[30] In a recent case of State v Eparama Nagalu and Others, Criminal Case No HAC 122 of 2008S the Court stated in paragraph 13 of the Sentence "To add salt to the wounds, you four, as a group demanded the couple's car keys, and fled in their land cruiser registration No "MEDIA 1", and used the same as a getaway vehicle,...When the same was recovered in the morning, it was extensively damaged. You showed a total disregard to the couple's right to own and operate their vehicle, and enjoy their property rights...You as a group were travelling in Mr. Narayan's "MEDIA 1". When corned at Kaba Street, Tamavua, you, as a group, decided to ram "MEDIA 1" head on with Police car....Both vehicles were extensively damaged, as a result. Once again, it demonstrated your utter disrespect to other's property rights. In Paragraph 23, all four Accused are sentenced to 9 months imprisonment (as per Count 4).

[31] Considering the above principle I impose 9 months but I make it to run concurrent with the above sentence.

UNLAWFUL USE OF MOTOR VEHICLE

[32] Unlawful Use of Motor Vehicle" carries a maximum penalty of 6 months imprisonment.

In State v Eparama Ngalu and Others [Supra], the Court sentenced each of the four Accused to 3 months imprisonment for the offence of Unlawful Use of Motor Vehicle. The Court had stated that in demanding the Couple's car keys and fleeing away on the same car as a getaway car, the Accused person's have showed a total disregard to the Couple's right to own and operate their vehicle, and to enjoy their property rights. The Court also noted that after robbing the Complainant, the Accused persons then robbed from a Motel Receptionist and later fled away in the same above said vehicle.

In The State v Timoci Delana, Criminal Case No HAC 190 of 2008, which is the Co-Accued in this case [State v Viliame Gauna], the Court sentence the Accused to 4 months imprisonment for the offence of Unlawful use of Motor vehicle. The Court in its remarks stated " 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, 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."

[33] I impose 3 months imprisonment and order the sentence to run concurrent with the above sentence.

[34] I am mindful that the Co-Accused in this case TIMOCI DELANA has pleaded guilty before Justice D.Goundar at a very earlier stage of this trial. Considering all circumstances he had been sentence to 10 years imprisonment.

MITIGATING FACTORS

[35] Now I consider your mitigating circumstances.

(a) You are remorseful.

(b)You have a child who is 19 months old.

(c) Your period in remand.

Considering your mitigating factors I deduct 2 years. Now your sentence is 17 years.

[36] I wish to place it record the assistance rendered by the Prosecutor. She was very helpful and fair in her prosecution.

[37] Considering all factors I act under Section 18 (1) of the Sentencing and Penalties Decree of 2009 I impose 15 years as non parole period to you.

[38] Your have 30 days to appeal against the sentence with the leave of Court of Appeal.

S Thurairaja
JUDGE

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Accused In Person