State v Serukalou [2011] FJHC 276; HAC154.2008 (19 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 154 OF 2008

BETWEEN:

THE STATE

AND:

1. KELEPI SERUKALOU
2. EMORI NAQOVA
3. JOSATEKI CAMA
4. ASESELA TAWAKE
   

Counsels: Mr. Jasveel Singh for the State
Mr. Akuila Naco for all Accused Persons

Date of Hearing: 4th to 12th May 2011

Date of Sentencing
Submissions: 17th and 18th May 2011

Date of Sentencing: 19th May 2011

SENTENCE

1. The learned Director of Public Prosecution had preferred the following charges against all three Accused persons above named.

"Count 1
Statement of offence (a)

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

Particulars of Offence (b)

KELEPI SERUKALOU, EMORI NAQOVA, JOSATEKI CAMA and ASESELA TAWAKE with others on the 18th day of August, 2008 at Nakasi in the Central Division, robbed RISHI SEGRAN f/n Surendra of $62,972.34 cash and cheques with the total sum of $1,033.76, the properties of Rajendra Prasad Foodtown Supermarket and immediately before such robbery did use personal violence on the said RISHI SEGRAN f/n Surendra."

2. The 1st Accused Kelepi Serukalou challenged the record of cautioned interview and a voir dire enquiry held regarding the admissibility of the same. After a full enquiry the Court found the said statement was admissible. After the ruling the 1st Accused changed his plea and pleaded guilty to the charge. Considering the nature of the plea and all other factors the Court found the plea to be unequivocal the 1st Accused was found guilty and convicted as charged.

3. The 1st Accused Kelepi Serukalou you are convicted under Section 293 (1) (b) of the Penal Code (Cap 17).

4. 2nd, 3rd and 4th accused persons were found guilty at the end of the trial.

5. Section 293 (1) (b) of the Penal Code prescribes life imprisonment as maximum sentence.

6. Tariff to the offence was discussed in many cases. In Basa vs The State Criminal Appeal No. AAU0024 of 200, the Court of Appeal suggested it ranges from 6 to 8 years.

7. In Maikeli Rawaqa & Segran Murti Criminal Case No. HAC 042 of 2004 the Court held the tariff ranges from 8 to 10 years.

8. In State v Wainiqolo Criminal Case No. HAC 008 of 2005 Justice Winter used a starting point at 12 years which is followed in State vs Sakiusa Rokonabete Criminal Case No. HAC 118 of 2007 and Justice Goundar imposed 13 years imprisonment.

9. In Guston F Kean v State the Court of Appeal (AAU 0048 of 2008) decided on 25/Nov.2010 11 years imprisonment was well within tariff.

10. Considering all above cases the tariff is between 7 years to 14 years imprisonment.

11. Considering the nature of the offence before the Court, it is a very well and meticulously planned robbery. The way it was shown on the CCTV recording corroborates this fact. Further this robbery was executed in the broad daylight and in front of the public. Considering all these factors the sentence is commenced at 10 years imprisonment.

12. Considering the aggravating factors.

(a) It was well planned robbery.

(b) It was committed in broad daylight at a public place.

(c) The amount involves were $62,972.34 cash and $1,033.76 in cheque.

Considering the aggravating factors your sentence is increased by 3 years. Now your sentence is 13 years imprisonment.

13. Since the 1st Accused is pleaded guilty his mitigating circumstances are considered separately.

(a) You are a first offender.

(b) You have pleaded guilty after the voir dire enquiry.

(c) You have not used high decree of violence against the victim.

(d) Your short period in remand.

(e) You are married with children.

(f) You claim you are remorseful.

(g) Police had recovered $1000.

Considering all above mitigating circumstances I reduce 7 years. Now your sentence is 6 years imprisonment.

14. Considering the mitigating circumstances of 2nd, 3rd and 4th Accused persons.

(a) No weapons used in the offence.

(b) The 2nd Accused Emori Naqova is married with 3 grown up children.

(c) 2nd Accused is looking after his elderly father-in-law.

(d) Your Counsel seeks leniency and forgiveness of the Court.

(e) 3rd Accused Josateki Cama is married with 3 children.

(f) 3rd Accused is the sole bread winner of his family.

(g) 3rd Accused is looking after his parents.

(h) 4th Accused Asesela Tawake married with a child from previous relationship.

(i) 4th Accused is the sole bread winner.

Considering all mitigating circumstances I reduce 3 years from your sentence. Now the sentence is 10 years imprisonment.

15. Considering section 18 (1) of the Sentencing & Penalties Decree. The above section states as follows:

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole".

16. The 1st Accused Kelepi Serukalou you are imposed of 4 ½ years as non parole period.

17. Emori Naqova, Josateki Cama and Asesela Tawake you are imposed of 8 years as non parole period.

18. Summary.

1st Accused Kelepi Serukalou – 6 years imprisonment and 4 ½ years as non parole period.

2nd Accused Emori Naqova – 10 years imprisonment and 8 years as non parole period.

3rd Accused Josateki Cama – 10 years imprisonment and 8 years as non parole period.

4th Accused Asesela Tawake – 10 years imprisonment and 8 years as non parole period.

20. 30 days to appeal.

S Thurairaja
Judge

At Suva
Solicitors

Office of the Director of Public Prosecution for State
Naco Chambers for all Accused Persons