State v Maya [2011] FJHC 263; HAC 86.2009 (12 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 86 OF 2009

STATE

vs

1. NOA MAYA
2. MESAKE LIGAVAI
3. MANASA VOLAU
   

Ms M. Fong for the State
Accused 1 in Person
Mr. T. Terere for the 2nd and 3rd Accused (mitigation only)

Date of Hearing: 10 May 2011
Date of Sentence: 12 May 2011

SENTENCE
[Robbery]

[1] On the 11th May 2011 the first accused was convicted after trial of one count of robbery, contrary to section 293(1)(a) of the Penal Code, Cap. 17, Laws of Fiji.

[2] The charge reads:

Statement of Offence

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

Particulars of Offence

NOA MAYA, MESAKE LIGAVAI and MANASA VOLAU with another, on the 11th day of September, 2007 at Lautoka in the Western Division, being armed with offensive weapons, robbed PRAKASH GARANA s/o Anaksi Garana of a DVD deck and television valued at $700.00, 4 22ct gold chains valued at $2,163.00, 4 bangles valued at $3,000.00, 1 mangal sutra valued at $1,500.00, 2 bracelets valued at $1,000.00, 5 rings valued at $300.00, a PBS decoder valued at $549.00 and $150.00 in cash, all to the total value of $9,362.00, the property of the said Prakash Garana.

[3] The second and third accused had each entered pleas of guilty (to the same count) on the 9th May 2011, the first day of trial and before voir dire on their respective cautioned interviews.

[4] The second and third accused admitted a set of facts and were convicted on their pleas and admissions.

FACTS

[5] The facts are the same as those revealed during the trial of the first accused and they can be stated as follows:

On the 11th September 2007, at about 10.15pm these three accused invaded the dwelling house of Prakash Garana at 13 Sugar Street, Lautoka and robbed him of many items. Mr. Garana was at home watching a movie along with his brother and sister-in-law. At the time, the security guard called for help and Mr. Garana on opening the door to investigate was confronted by a masked man running towards him, armed with a pinch bar. He was forced to sit down as three other masked men entered the house. The victim was asked where his safe was, and when they were told there was no safe, they searched the house taking the items referred to in the charge. They ripped earrings from the ears of the sister-in-law causing injury to her ears. They soon left the premises with the stolen goods, climbing over the fence and getting into a getaway car.

MITIGATION

[6] The first accused's only point of mitigation was an irrelevant complaint about the conduct of his trial. When forced, he told the Court that he is 24 years old, single and usually works as a casual worker. He claims to have been in remand awaiting trial for one year and seven months. He has seven previous convictions which he admits, and four that he disputes.

[7] The second accused is 26 years old married with one 6 year old son. He is the sole breadwinner and his wife supports him emotionally. He has seven previous offences of a similar nature which he admits.

[8] The third accused is 25 years old and single. He has two previous convictions for robbery with violence and is serving a term of 12 years with 8 years minimum. He provides references of good character and a newly found spiritual life.

[9] Mr. Terere pleads on behalf of the second and third accused that I be lenient. That it was a drunken escapade and not planned. He asks for terms to be served concurrently with present terms and asks that they both be given a chance to renew their lives.

THE LAW

[10] These accused have been charged with and convicted of the offence of robbery simpliciter and not robbery with violence, although one wonders why they were not. The maximum penalty remains the same, that is a term of life imprisonment, reflecting the legislature's strong view of the severity of the crime. This offence is very serious indeed because it was invasion of domestic premises by a group at night.

[11] Mr. Justice Winter said in Waisake Matahau Uluikadavu – HAA 35 of 2004 –

"Home invasions are a particularly traumatic invasion into the lives of citizens. The most striking feature of these episodes is the sheer terror to its victims. They are set upon within the apparent safety of a private dwelling by complete strangers. These unjustified acts of terrorism by intruders within the home invade the family sanctuary and violate the sense of security that lies at the heart of each home. As such, these acts not only affect the lives of their immediate victims but also instill fear in the whole community creating a siege like mentality."

[12] This Court adopts those dicta, and will cast the sentences in accordance with its import.

[13] It is now settled law that offences for robbery with violence should attract sentences of ten to fifteen years depending on the degree of violence (Basa – AA0024/04, Rokonabete – HAC 118/07 and Rasaqio – HAC 115/2007). Those terms subsume of course the violence charged in the offence; a robbery simpliciter assumes no violence so the sentence can be a little less.

[14] I take as a starting point in this case a term of 9 years imprisonment. There are several aggravating features involved which are –

(i) group invasion.

(ii) brandishing (but not use of) pinch bars.

(iii) an act of violence on the ears of a female in the house.

(iv) invasion at night.

For these aggravating features I add a further term of three years, bringing the interim term to one of twelve years.

[15] The first accused offers nothing by way of mitigation apart from his time on remand; which the Court assesses to be 1 year and 5 months. However he has also been remanded for another case for the same amount of time and therefore the whole period of remand is not available to him by way of discount in this case. In "halving" the remand period, I give him credit for 9 months spent and the first accused's total sentence therefore is 11 years and 3 months' imprisonment. He will serve nine years of that term before being eligible for parole.

[16] The second and third accused have the benefit of a plea of guilty even though it not be at a very early stage. It is nevertheless an act of remorse and does save the Court time and resources. For their pleas of guilty I give each of these two a discount of three years, meaning that they will each serve a term of nine years imprisonment.

[17] The second accused will serve nine years with a minimum term of seven years before being eligible for parole. This term will be served concurrently with any other term of imprisonment he is serving.

[18] The third accused will receive an additional discount of one year for his good references, his good conduct in prison and his newly acquired spiritual development. For that his sentence is reduced to a term of eight years to be served concurrently with his present term of imprisonment of twelve years.

[19] To satisfy the provisions of section 20(2) of the Sentencing and Penalties Decree 2009 in respect of the third accused, I order that a new minimum term of eight years be served before parole for this offence and previous offences.

[20] Thirty (30) days to appeal to the Fiji Court of Appeal.

Paul K. Madigan
JUDGE

At Lautoka
12 May 2011