State v Manoa [2010] FJHC 409; HAC061.2010 (6 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 108 of 2009
Criminal Case No: HAC 61 of 2010

STATE

V

ELIA MANOA

Hearing: 20th, 27th July 2010
Sentence: 6th August 2010

Counsel: Mr. S. Vodokisolomone & Ms R. Drau for State
Mr. A. Vakaloloma for Accused

SENTENCE

Charges and guilty pleas

[1] Elia Manoa, you are convicted on your own pleas of guilty to the following offences:

HAC 108/09

Count 1 - Robbery with violence, contrary to section

293(1)(b) of the Penal Code Cap 17.

Count 2 - Unlawful use of motor vehicle, contrary to

section 292 of the Penal Code Cap 17.

HAC 61/10

Count 1 - Aggravated robbery, contrary to section 311(1)(b) of the Crimes Decree 2009.

Count 2 - Aggravated robbery, contrary to section 311(1)(b) of the Crimes Decree 2009.

Facts

[2] The facts in HAC 108/09 are that on the night of 4 September 2009, you forcefully entered the house of the complainant with a group of men whilst the occupants were asleep. The entry to the house was gained by breaking the front sliding glass door. The intruders were armed with pinch bar and knife. The complainant, Satish Chandra, and his family members were threatened not to resist.

[3] The intruders ransacked the house and stole valuable items valued at $1,700.00 before fleeing in the complainant's vehicle.

[4] After arrest, you were interviewed under caution. You confessed to the offences to the police. The stolen properties have not been recovered.

[5] You committed the robbery in HAC 61/10 while you were on bail in HAC 108/09. On the night of 13 March 2010, you robbed a couple, Rajendra Sami and Lalita Sami, in their home. The robbery was committed in the company of two others. The entry to the property was made by cutting the backyard fence.

[6] A 61-year old man was working as a watchman on that night. He was gagged with a piece of cloth after the intruders entered the compound. The intruders entered the house through a window. The victims were asleep in their bedroom. After gaining entry to the victims' bedroom the intruders threatened them with cane knife, screw driver and pinch bar. They warned the victims not to resist but to co-operate. The intruders ransacked the house and fled the scene after stealing properties and cash to a total value of $55,695.00. Only a small portion of the stolen properties have been recovered.

[7] You confessed to the offences under caution.

Sentencing principles

[8] In sentencing you I bear in mind that section 4 of the Sentencing and Penalties Decree 2009 outlines the purposes for sentence:

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[9] In sentencing your co-offenders in HAC 108/09, I applied the principles as outlined in cases such as State v. Basa Criminal Appeal No: AAU0024 of 2005; Wainiqolo v. The State AAU0027.2006; State v. Rokonabete & Ors. HAC118.2007. I adopt those principles in this case. The tariff for gang armed robbery range from 8 to 14 years imprisonment. A starting point of 10 years was picked for your co-offenders. Your co-offenders Saimoni Rokotunidau and Timoci Delana, were sentenced to a total sentence of 12 years and 10 years imprisonment, respectively, on pleas of guilty to a number of robberies.

Maximum penalty

[10] The maximum penalty for robbery with violence under the Penal Code is life imprisonment, while the maximum penalty for aggravated robbery under the Crimes Decree is 20 years imprisonment. Although the maximum sentence under the Decree has been reduced to 20 years imprisonment, in my judgment, the tariff of 8 to 14 years imprisonment established under the old law can continue to apply under the new law. I hold this for two reasons. Firstly, the established tariff of 8 to 14 years under the old law falls below the maximum sentence of 20 years under the new law. Secondly, under the new law, aggravated robbery is made an indictable offence, triable only in the High Court, which means the Executive's intention is to continue to treat the offence seriously.

Personal circumstances

[11] You are 30 years old. You were brought up by your grandparents. You have a certificate in electrical work from the Fiji Institute of Technology.

[12] You have a farm in Taveuni. At the time of the offences, you lived with your mother, who is depended on you. You have a long list of previous convictions, mostly for theft related offences. In 2000, you were convicted for a robbery with violence and sentenced to 4 years imprisonment. You have made no attempt to reform yourself and to become a law abiding citizen. Because of your criminal history, you are not entitled to any credit for previous good character.

Mitigating factors

[13] You pleaded guilty on the eve of the trial in HAC 108/09. In HAC 61/10, you entered an early guilty plea. By pleading guilty you saved court time and resources. You co-operated with the police by confessing to the offences. You have shown remorse.

Aggravating factors

[14] Fortunately, the occupants of the homes were not injured in the course of the robberies. However, the victims were robbed at night time in the security of their own homes. The robberies were carried out in gangs armed with offensive weapons. It must have been a frightening experience for the victims. You committed the robbery in HAC 61/10 whilst on bail in HAC 108/09. An elderly watchman was gagged with cloth when the robbery in HAC 61/10 was committed. The stolen properties were of substantial value and little has been recovered.

Remand period

[15] You have been in custody for 4 four months pending trial since March 2010, which I take into account.

Sentence

[16] For each offence of robbery with violence, I start with a term of 10 years imprisonment. I add 4 years for the aggravating factors and deduct 3 years for guilty plea and remorse, 8 months for co-operation with police, and 4 months for remand period.

[17] Your sentences are:

HAC 108/09

Robbery with violence - 10 years imprisonment

Unlawful use of motor vehicle - 4 months imprisonment

HAC 61/10

Aggravated robbery - 10 years imprisonment

Aggravated robbery - 10 years imprisonment

Non-parole period

[18] Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, I fix a non-parole period of 7 years imprisonment for each term of 10 years imprisonment imposed for robbery with violence.

Concurrent order

[19] I order the sentences to run concurrently, bearing in mind that making the sentences consecutive will result in an aggregate sentence that may be excessive. In my judgment, a term of 10 years imprisonment with a non-parole period of 7 years for these offences is just and appropriate. Your sentence should deter you and others from committing offences of this nature.

Daniel Goundar
JUDGE

At Suva
6th August 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of A. Vakaloloma & Associates for Accused