State v Turagakula [2011] FJHC 185; HAC011.2008L (24 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 011 OF 2008L

STATE

V

1. ISEI TURAGAKULA
2. MANASA VOLAU
   

Mr. T. Qalinauci for the State
Mr. T. Terere (L.A.C.) for Both Accused

Date of Hearing: 14, 15 and 23 March 2011
Date of Sentence: 24 March 2011

SENTENCE

[1] On the 14th March 2011 on the first day of their trial in this Court each of these two accused entered a plea of guilty to the four counts on the information. These counts read as follows:

FIRST COUNT
Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of offence

ISEI TURAGAKULA and MANASA VOLAU on the 29th day of May 2007 at Lautoka robbed ANIL MISHRA f/n Ambika Mishra of one Panasonic mobile phone valued at $600.00, wallet valued at $15.00 and cash of $95.00 to the total value of $710.00 and immediately before the said robbery did use personal violence on the said ANIL MISHRA f/n Ambika Mishra.

SECOND COUNT
Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Cap. 17.

Particulars of Offence

ISEI TURAGAKULA and MANASA VOLAU on the 29th day of May 2007 at Lautoka in the Western Division unlawfully and without colour of right but not so to be guilty of stealing took for their own use motor vehicle registration number CK 772, the property of ANIL MISHRA f/n Ambika Mishra.

THIRD COUNT
Statement of Offence

LARCENY: Contrary to section 259 and 262 of the Penal Code, Cap. 17.

Particulars of Offence

ISEI TURAGAKULA and MANASA VOLAU on the 29th of May 2007 at Lautoka in the Western Division, stole unleaded diesel valued at $29.42 the property of TOTAL COMPANY LIMITED.

FOURTH COUNT
Statement Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

ISEI TURAGAKULA and MANASA VOLAU on the 29th day of May 2007 at Lautoka in the Western Division robbed LEKH RAM CHAND f/n Penchalaia of $53.00 cash and immediately before such robbery did use personal violence on the said LEKH RAM CHAND f/n Penchalaia.

FACTS
[2] The facts which both accused admitted were as follows:

"On the 29th day of May, 2007 at about 10.00pm, Anil Mishra s/o Ambika Mishra was drinking grog with friends at the Bowling club at Veitari in Lautoka when the accused persons, Isei Turagakula and Manasa Volau, entered the said Club. They were armed with iron rod and threatened Mishra and party. They took Mishra's Panasonic brand mobile phone valued at $600.00, wallet valued at $15.00 containing cash of $95.00 and his car key. After robbing Mishra, the accused persons drove off with his car, a Toyota Cressida, registration number CK 772.

Later that night, at about 10.30pm, the two accused persons drove the unlawfully used vehicle, CK 772 to Total Service Station at Sukanaivalu Road and filled it with unleaded diesel at $29.92. Immediately after fuelling, the two accused persons drove away without paying for the unleaded diesel. At about 11.30pm, the two accused persons stopped at a B.B.Q. stall along Sukanaivalu Road and threatened Lekh Ram Chand s/o Penchalaia and took cash from the ice-cream container of $53.00 and drove away in the said vehicle. Upon pursuit the police found the vehicle abandoned at Tanoa Place, Lautoka."

[3] The first accused is 28 years old and lives with his de facto wife and 2 young children. He has been educated to Class 6. He is presently serving a sentence of 13 years for robbery with violence.

[4] The second accused is 25 years old, single, and has been educated to Class 8, and he is presently serving a term of 12 years for robbery with violence.

[5] Counsel for both accused tells me that the crimes were alcohol fuelled and more "opportunistic" than planned, that none of the victims was injured and that they should receive credit for their pleas of guilty. In addition the first accused furnishes copies of certificates for courses he has undertaken in custody. Reference to the character and new found spirituality of the second accused has been provided by a prison pastor.

LAW

[6] It is now settled law in Fiji that offences of robbery with violence should attract sentences of between ten and fifteen years depending on the degree of violence (Basa – AAU0024/04; Rokonabete – HAC 118/07; Rasaqio – HAC 115/2007). As Goundar J. said in Susu [2010] FJHC 226:

"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."

These dicta must be totally valid in assisting the severity of any robbery and I adopt them in this case.

SENTENCE

[7] The degree of violence in the first robbery was minimal, but the threat of violence when the accused presented themselves with an iron rod must have been very real. The value of stolen property was not large. An appropriate starting point for this robbery (Count 1) is twelve years. The aggravating feature of the use of an iron rod is comprised in the starting point. Relevant mitigation is afforded by the plea of guilty (albeit a plea on Day 1 of the trial) and absence of injury to the victim. They being serving prisoners, there is no time spent in remand to be credited to them.

[8] A genuine and early plea of guilty can attract a discount of up to one third of the total sentence. However where the State has prepared a trial and has summonsed and called its witnesses to give evidence, the discount would more appropriately be between 15% and 20%. All guilty pleas must be encouraged with meaningful discounts, no matter how late in the day. In this case for the plea of guilty and the absence of injuries I take from the twelve years two years which means the total sentence for count one is 10 years.

[9] The usual sentence for unlawful use of a motor vehicle under the Penal Code is three to six months and therefore for this offence, I sentence each of the accused to a term of 4 months to be served concurrently with the robbery.

[10] Theft of motor fuel comes within the usual larceny tariff of 2 to 3 years (Chand (2007) FJHC 65). I sentence each of the accused to 2 years imprisonment again to be served concurrently to the robbery.

[11] The robbery as set out in the fourth count displays a crime of a more opportunistic kind. The sum of $53 was stolen under threat (although the nature of the threat is not clarified) and the aggravation of two person robbing in the middle of the night is high.

[12] For this robbery I take again a starting point of twelve years, reducing that to ten years for the late plea of guilty. This too will be served concurrently.

[13] The sentences that each accused will serve is as follows:

Count 1 - 10 years

Count 2 - 4 months concurrent

Count 3 - 2 years concurrent

Count 4 - 10 years concurrent

[14] This total term of ten years will be served concurrently with the sentence each accused is presently serving, pursuant to section 22(1) of the Sentencing and Penalties Decree 2009.

[15] Each accused will serve a minimum of eight years of this sentence before being eligible to be considered for parole.

Paul K. Madigan
JUDGE

At Lautoka
24 March 2011