State v Naitini [2010] FJHC 506; HAC013.2009 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 013 OF 2009

BETWEEN:

STATE

PROSECUTION

AND:

1. KILIONI NAITINI
2. ORISI RAOGO
3. INOKE VUETIVITI
4. SOLOVENI TABANIDALO
ACCUSED

Counsel: State - Mr. Kaisamy
1st, 2nd & 3rd Accused - Mr. Lee

Date of Sentence: 16 November 2010

SENTENCE

Kilioni Naitini, Orisi Raogo and Inoke Vuetiviti you stand convicted of one count of Manslaughter and of one count of Robbery with Violence, following a plea of guilty.

The facts of the case are that, on 13/4/2009, three of you with another, planned to rob Hanshine Fiji Limited at Naqelekula, Naqere, Savusavu. You arrived in Savusavu from Suva, on 18/4/2009 morning and stayed in a farm house in Savudrodro.

On the 19th April 2009, three of you with another entered the Hanshine Fiji Limited property by climbing through the back gate. You hid inside, waiting for the security Mr. Sheik Mohammed to do his routine check. When security guard came, you tackled him, made him fall onto the ground. There was a scuffle and one of the accused punched the security on the stomach. You tied and taped his mouth, hands and legs. Then you lifted him and left him in the dark side of the shed. You went to the tool room and when came back, you saw the security guard finding difficult to breath, hence you tried to revive him by sprinkling water on him and pumping his chest to allow him to breath. However, a vehicle approached the main gate and therefore you fled. When you returned you noticed that the security was no longer breathing. The inability of the security to breath, together with a head injury, resulted in the death of the security.

Then you approached Mr. Nambok Cho's residence in the Hanshine property. Mr. Cho was in his verandah just about entering his house. When he saw a figure approaching him, he swung and hit one of you with the golf club, which he had in his hand. Then two of you jumped in the dark, one of you punched him, and he fell on the floor. One of you held his neck while other two taped his mouth and tied his arms. You took him to an empty bedroom and tied his legs. You got the keys from his pocket and ransacked Mr. Cho's place, taking cash, and items to the total value of $107264.00. Then you left Vanua Levu.

Robbery with Violence is a prevalent offence in Fiji and it is considered a serious offence, as the maximum punishment for it is life imprisonment.

In the case of Basa v The State Criminal Appeal No. AAU0024 of 2005, the Court of Appeal reconsidered earlier decisions in which New Zealand cases have been used as guidance, in deciding appropriate penalties for robbery with violence which suggested a range of 6 – 8 years 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 terms of imprisonment."

In State v Semisi Wainiqolo Criminal Case No. HAC 008 of 2005, Winter J said;

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

In Rokonabete v State and Others Criminal Case No. HAC 118 of 2007 after reviewing cases from England on robbery with violence Justice Goundar 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."

Aggravating factors

In this case, the aggravating factors on all 3 accused are, that you used personal violence on Mr. Cho, by punching him and then tying him up before ransacking the house. You assaulted and tied the security guard who was at the ajoining mill before you entered the house of Mr. Cho.

The robbery was well planned. Before you robbed the victim, you knew that the security guard died due to your actions, and you still continued with the robbery as planned before. The victim Mr. Cho was kept tied for long, until you ransacked the house and robbed the cash and other items. You made off worth cash and items to the value of $107,264. It was a gang robbery.

For the offence of Robbery with Violence, I start with 10 years imprisonment on all 3 accused (Accused 1, 2, and 3). I add 5 years imprisonment on each accused on the aggravating factors making it 15 years imprisonment on each of you.

Mitigating factors

All three of you pleaded guilty to the charges saving time of Court, state's resources and have saved and avoided the victim and several witnesses pain of having to recall the incident. Therefore you deserve a substantial discount in sentence.

It is submitted that some of the stolen items were recovered, and that you cooperated with the police when arrested. Now I consider the other mitigating factors submitted by your counsel on each accused.

1st Accused Kilioni Naitini, you are 39 years old. It is submitted that you have been looking after your son's welfare and been helping your mother in her self employment. Your marriage broke down 2 months prior to incident and your wife resides in Suva with the other child. It is further submitted that you are sincerely sorry for what you have done.

For the above mitigating factors, your early guilty plea and considering your period in remand, I reduce 5 years making total of 9 years imprisonment. You have 14 previous convictions, but they are more than 14 years old, and therefore I will not consider them against you. I give you a discount of 3 months for your good behaviour for last 14 years, making final sentence for the offence of Robbery with Violence to 8 years and 9 months.

The 2nd Accused Orisi Raogo, it is submitted, that you help your mother, care for your younger sister. You are 25 years old. You earn your living by root crop farming. It is submitted that you too are sincerely sorry for what you have done.

For the above mitigating factors, your early guilty plea, and considering your period in remand, I reduce 5 years making a total of 9 years imprisonment. You have 2 previous convictions and therefore you are not entitle to a discount for previous good behaviour.

Therefore your final sentence for the offence of Robbery with Violence is 9 years imprisonment.

The 3rd Accused Inoke Vuetiviti, you are 30 years old. It is submitted that you earn your living by selling yaqona crops. You are single, but you look after your 78 year old mother. You too are sincerely sorry for what you did.

For the above mitigating factors, your early guilty plea, and considering your period in remand, I reduce 5 years making a total of 9 years imprisonment. You have no previous conviction. You are 1st offender. Therefore I give you a discount of 1 year for your previous good conduct, making your final sentence for the offence of Robbery with Violence to 8 years imprisonment.

Offence of Manslaughter carries a maximum punishment of imprisonment for life. Sentence for manslaughter ranges from a suspended sentence to 12 years imprisonment. (Kim Nam Bae v State Criminal Appeal No. AU0015/1985).

In Kim Nam Bae v State (supra) the Court said:

"... The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation, to 12 years imprisonment where the degree of violence is high and provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts."

In this case there was no provocation at all by the deceased, security guard. It was planned by the accused persons to tackle him and tie him to see that their planned robbery becomes a success. I also take into account that you tried to revive the security guard, when you saw that he was finding it difficulty breath due to your tying him up and the punch on the stomach.
Considering all above factors, the aggravating factors mentioned before, and all that has been said on your behalf in mitigation, your early guilty plea, I sentence each of you to 5 years imprisonment for the 1st count of manslaughter.

In summary the sentences are:

1st Accused: Count No. 1 Manslaughter

5 years imprisonment

Count No. 2 Robbery with Violence

8 years and 9 months imprisonment

Sentences on both counts to run concurrently.

2nd Accused: Count No. 1 Manslaughter

5years imprisonment

Count No. 2 Robbery with Violence

9 years imprisonment

Sentences on both counts to run concurrently.

3rd Accused: Count No. 1 Manslaughter

5 years imprisonment

Count No. 2 Robbery with Violence

8 years imprisonment

Sentences on both counts to run concurrently.

On all 3 accused persons, I order a non parole period of 6 years.

30 days to appeal.

Priyantha Fernando
Judge

At Labasa
16 November 2010