State v Batikalou [2011] FJHC 164; HAC119.2010 (16 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 119 OF 2010

BETWEEN:

STATE

AND:

VERENIKI BATIKALOU

Counsel: Ms. M. Tikoisuva for the State
Accused in Person

Date of Hearing: 10th February 2011
Date of Sentencing: 16th March 2011

SENTENCE

[1] Vereniki Batikalou you are originally charged with the following offences by the
Director of Public Prosecutions.

"VERENIKI BATIKALOU is charged with the following offences:

FIRST COUNT

Statement of Offence

ATTEMPTED RAPE: Contrary to section 208 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VERENIKI BATIKALOU, on the 11th day of June 2010, at Queen Elizabeth Drive, at Suva in the Central Division, attempted to have carnal knowledge of ANGELIKA PLANITZ, without her consent.

SECOND COUNT

Statement of Offence

ROBBERY: Contrary to section 310 (1) (a) (i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VERENIKI BATIKALOU, on the 12th day of June 2010, at Queen Elizabeth Drive, at Suva in the Central Division, stole $20.00 cash, a blue shoulder bag valued at $10.00 and a pair of sunglass valued at $30.00, all to the total value of $60.00 the property of ANGELIKA PLANITZ and immediately before stealing used force on the said ANGELIKA PLANITZ."

[2] When the matter was taken up you pleaded guilty for the 2nd Count and pleaded not
guilty to the 1st count. The learned DPP had withdrawn the 1st Count of Attempted Rape.

[3] You have pleaded guilty to the offence of Robbery and admitted the summary of
facts submitted by the State. Summary of facts read as follows:

"On Saturday 11th June at 6.40am, 42 year old Angelika Planitz, a German National working for the United Nations International Strategy for Disaster Reduction, left her home at Beach Rd, Suva Point for a jog. She was wearing a black sleeveless t-shirt, black exercise trousers and a pair of jogging shoes. She had her house keys, a $20 note and sunglasses valued at $30, all to the total value of $60.

She walks from her home to Queen Elizabeth drive. Along Queen Elizabeth drive she was heading towards Suva. As she approaches the 'Lighthouse' opposite Suva Grammar School, she notices the accused standing near the wooden building that is attached to the Light House. As she nears it he disappears from sight. She sees him again standing at the edge of the pavement by the Sea Wall. He then begins walking towards Suva.

She walks faster, passes him and starts jogging. When she reaches the School of Catering she suddenly feels the accused wrapping his arms very firmly around her, locking both her arms by her side. He carries her across the road into the hush area on the right side. He carries her more than a meter into the bush and throws her on the ground. She falls face first but quickly turns around to push him away. She immediately recognizes the accused as the Fijian man who was walking behind her. He pins her to the ground with his arms and legs. She struggles, screaming for help but she cannot free herself. She begs him not to do anything to her.

He then stands up and walks away but returns and snatch her shoulder bag from her and runs away into the bush. Angelika Planitz gets up and runs back to the road calling for help. She stops a vehicle heading towards Suva and was taken to the Totogo Police Station where she reported the incident".

[4] Now I consider the law relating to the offence of Robbery.

"A person commits an indictable offence (which is triable summarily)

if he or she commits theft and –

(a) immediately before committing theft, he or she-

(i) uses force on another person; or

(ii) threatens to use force then and there on another person –

With intent to commit theft or to escape from the scene; or

(b) at the time of committing theft, or immediately after committing theft, he or she-

(i) uses force on another person; or

(ii) threatens to use force then and there on another person-

With intent to commit theft or to escape from the scene.

Penalty – Imprisonment for 15 years."

[5] Now I consider the tariff to the offence of Robbery.

In Seru v State [2002] FJHC 183; HAA0084J.2002S (22 November 2002), Justice Shameem held that: "(...) the maximum sentence for simple larceny is (on a second conviction) 10 years imprisonment. The tariff, on a first conviction under sections 259 and 262 of the Penal Code, is two months to nine months imprisonment".

[6] In State v Sorovaki, the learned Magistrate on a charge of Robbery contrary to S.310 (1) (a) (ii) of the Crimes Decree No. 44 of 2009 sentenced the accused to 3 years imprisonment with 14 months non-parole period.

[7] Considering the above cases the tariff is between suspended terms to ten years imprisonment.

[8] You have admitted that you have 26 previous convictions. 14 out of which are committed within the operational period. Considering the previous conviction I am compel to consider Section 10 & 11 of the Sentencing & Penalties Decree.

Section 10 of the Sentencing Decree states as follows:

"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.

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."

[9] Now I list your previous convictions as follows:

Date	Court	Offence	Sentence	Case File
22/06/98	Nausori	Damaging Property	Fined $100 i/d 3 months imp.	254/98
15/02/99	Suva	Obstructing Police Officer in due execution of his duty	Bound over in the sum of $200 to keep peace and be of good behavior for 12 months	2594/98
27/09/99	Suva	Forfeiture of bail bond	Fined $50 i/d 50 days imp.	620/99
06/12/99	Suva	Burglary	9 months imp. Suspended for 18 months. $200 vide of 2594/98 forfeited 1/d 2 months imp. TAP – 1 month	2730/99
05/05/00	Suva	Larceny	Bound over in the sum of $100.00 not to reoffend for next 12 months	620/99
05/05/00	Suva	Burglary	Sentence to 6 months imprisonment suspended for 12 months	478/00
05/05/00	Suva	Larceny of Bird	Fined $10.00 1/d 10 days imprisonment	709/00
05/05/00	Suva	Larceny in dwelling house	Sentence to 9 months imprisonment suspended for 18 months & concurrent to count 1	478/00
23/08/00	Suva	Larceny	2 months imp. consecutive to case file 2008/00	2007/00
23/08/00	Suva	Larceny in dwelling house	4 months imp. consecutive to 2007/00 and present term	2008/00
14/12/00	Suva	Larceny	6 months imp. Concurrent to present term serving	2009/00
18/12/00	Suva	Larceny	6 months imp. Concurrent to present term serving	2009/00
15/03/01	Suva	Larceny in dwelling house	6 months imp. Concurrent to the present term serving	2010/00
22/05/01	Suva	Burglary	9 months imp.	1411/01
22/05/01	Suva	Larceny in dwelling house	9 months imp. To run concurrent	141/01
04/03/02	Ba	Larceny	3 months imp. Concurrent to CF 122/02	123/02
04/03/02	Ba	House Breaking Entering And Larceny	18 months imp	122/02
08/04/02	Tavua	House Breaking Entering And Larceny	9 months imp. consecutive to present term serving	79/02
02/08/04	Suva	House Breaking Entering And Larceny	2 years imp.	1739/04
26/05/05	Suva	Larceny	2 months imp run concurrent with present term	1832/04
13/02/06	Suva	Larceny	3 months imp consecutive to CF358/06 total of 2 years imp.	359/06
13/02/06	Suva	Larceny	Sentenced to 12 months imp. consecutive to CF 359/06. 2 years imp.	358/06
19/07/06	Suva	Escaping from Lawful custody	9 months imp consecutive to present term serving	1463/06
20/12/06	Suva	Found in possession of dangerous drugs	Sentenced to 12 months imp to be served concurrently to his current prison term	1704/04
04/05/09	Suva	House Breaking Entering and Larceny	6 months imp suspended for 18 months	500/09
07/04/10	Suva	Criminal Trespass	3 months imp	437/10

[10] Considering the nature of the previous convictions and the nature of the offence I act under Section 11 of the Sentencing & Penalties Decree. I declare you as a habitual offender.

[11] Considering all above factors I commence your sentencing at 8 years imprisonment.

[12] Now I consider the aggravating factors.

(a) You have used force on a lady who was jogging alone.

(b) You made the victim to fear for her life.

(c) The victim suffered injuries because of your act.

(d) You caused fear to the public who are jogging or walking for their health.

Considering all aggravating factors I increase your sentence by 4 years. Now your sentence is 12 years.

[13] Now I consider the mitigating circumstances.

(a) You pleaded guilty at the earliest point of trial.

(b) You claim you are remorseful.

(c) Your period spent in remand.

(d) You are married with a child.

Considering all mitigating circumstances I reduce 4 years. Now your sentence is 8 years imprisonment.

[14] The Government and the City Council is doing their best to encourage the public to do physical exercise including walking. For that reason they have provided certain area for the women and children and all people. You have assaulted a lady who was jogging on the sea wall of Suva. Even though the robbed amount is small, you have created fear not only the victim but also to others who are using these common facilities. If this continued, this beautiful Fiji will have sickly people, which in turn will cause serious burden to the health facilities of this country. Your sentence should be a lesson to all offenders who are committing similar offence.

[15] Considering section 18(1) of the Sentencing & Penalties Decree I fix 7 years as non parole period.

[16] You are sentenced to 8 years imprisonment.

[17] You have 30 days to appeal to the Court of Appeal.

S Thurairaja
Judge

At Suva

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