State v Qarasaumaki [2011] FJHC 283; HAC096.2009S (23 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 096 OF 2009S

THE STATE

vs

1. TADEO QARASAUMAKI
2. ASAELI KOROI
3. PENI WAQAKIBAU

Counsels: Ms. L. Tabuakuro for the State
Accused No. 1 in Person
Accused No. 2 in Person
Accused No. 3 in Person

Hearings: 10th to 16th March, 2011
Summing Up: 18th March, 2011
Judgment: 18th March, 2011
Sentence: 23rd May, 2011

SENTENCE

1. On count No. 1, you were all charged with violently robbing Nitendra Singh of $49,776.39 cash and $3,390.46 cheques, at Nabua in the Central Division, between 7th July and 20th August, 2007, contrary to sections 293(1)(b) and 21 of the Penal Code, Chapter 17. After a trial lasting 5 days, the three assessors unanimously found accused No. 1 guilty as charged, and accused No. 2 and 3, not guilty as charged. The court agreed with the assessors, found accused No. 1 guilty as charged, and convicted him accordingly. The court found accused No. 2 and 3 not guilty as charged and acquitted them.

2. On counts No. 2, 3 and 4, charges concerning "receiving stolen property", contrary to section 313(1) of the Penal Code, all the accuseds were found guilty as charged by the three assessors. The court agreed, found all the accuseds guilty as charged, and convicted them accordingly.

3. On count No. 1, the brief facts were as follows. Accused No. 1, you were hired by the complainant company, to guard its general manager, Mr. Jitendra Singh, do its banking on 20th August 2007. Unbeknown to your employer, "Superfood Supermarket", you have made plans with others, to rob the supermarket. On 20th August 2007, the company cashier, Ms. Saleshni Sami, collected the cash and cheques of the company, totalled the same, and gave it to Mr. Singh to bank. The cash totalled $49,776.39, and cheques amounted to $3,390.46. Mr. Singh went to the vehicle, parked at the back of "Superfood Supermarket", to travel to the bank.

4. Unbeknown to Mr. Singh, you have already arranged with 4 or 5 robbers, who were waiting nearby to attack him, on your signal. When Mr. Singh was in the vehicle, you signalled to the robbers to rob him. The robbers drove to their vehicle, smashed the same, punched Mr. Singh several times, and fled with the bag containing the $49,776.39 cash and $3,390.46 cheques. You then pretended as if nothing happened. You continued to deny your involvement, until the police revealed, after their investigation, your deep involvement in the robbery. You were the main link between the complainant company and the robbers. You provided confidential information to them on the movement of company money on the day of the banking. Without your input, the robbery would have failed.

5. On count No. 2, 3 and 4, the court found that all of you received a share of the stolen $49,776.39 from "Superfood Supermarket". Accused No. 1 and 3 were found to have received $1,000 each, while Accused No. 2, was found to have received $2,000. You all knew the above money was stolen property, when you received it.

6. Robbery with Violence is a serious offence, and it carries a maximum sentence of life imprisonment. Previous case laws put the tariff between a sentence of 6 to 14 years imprisonment: see State v Sakiusa Rokonabete & Others, Criminal Case No. 118 of 2007, High Court, Suva; Sakiusa Basa v The State, Criminal Appeal No. AAU 0024 of 2005, Fiji Court of Appeal; Semisi Waqiniqolo v The State, Criminal Appeal No. AAU 0027 of 2006, Fiji Court of Appeal.

7. For "receiving stolen property", the maximum sentence is 14 years imprisonment. However, case precedent seemed to put the tariff between a sentence of 1 year to 3 years imprisonment. If the value of the properties received is low, the sentence is often lower. It is otherwise, if the value of properties received is high: see Jesoni Tabakau v The State, Criminal Appeal No. HAA 0019 of 2003S, High Court, Suva; Ilaitia Tuwere Turaga v The State, Criminal Appeal No. HAA 082 of 2002S, High Court, Suva; Timaleti Utovou v The State, Criminal Appeal No. HAA 0010 of 2002S, High Court, Suva. The actual sentence on the above offences will depend on the mitigating and aggravating factors.

8. The mitigating factors for the accuseds are as follows:

(i) Accused No. 1: Tadeo Qarasaumaki

• 33 years old, married with 3 children to support;
• sole breadwinner;
• looking after mother;
• has been remanded in custody for 12 months (ie. 21.5.10 to 23.5.11);
• 1st Robbery with Violence offence.
  

(ii) Accused No. 2: Asaeli Koroi

• 43 years old, married with 5 children to support;
• currently serving 2 years imprisonment;
• was remanded in custody for 7 months (ie. 1.12.09 to July 2010), and convicted in July 2010;
• 1 previous conviction
  

(iii) Accused No. 3: Peni Waqakibau

• 39 years old, married with 2 daughters;
• 1st offender;
• been remanded in custody for 6 months;
• looking after his family and sickly mother;
• active participation in community activities.
  

9. The aggravating factors for the accuseds are as follows:

(i) Accused No. 1: Tadeo Qarasaumaki

• Serious breach of trust – as an employee, you were paid to protect the company, by guarding its employees, and its money, on the day it did its banking. Yet, you did exactly the opposite, by passing on confidential information and assisting the robbers, rob your employer;
• by participating in this robbery, you showed total disregard to Mr. Jitendra Singh's personal safety, when he was attacked by the robbers, you loyally assisted:
• by participating in this robbery, you showed total disregard to your employer's property rights, when its $49,776.39 cash and $3,340.46 cheques were stolen;
  

(ii) Accused No. 2: Asaeli Koroi

• by receiving $2,000 from the "Superfood Supermarket" stolen money, you showed total disregard to the complainant's property rights;
• by receiving the stolen money, you encouraged others to commit crimes.
  

(iii) Accused No. 3: Peni Waqakibau

• by receiving $1,000 from the "Superfood Supermarket" stolen money, you showed total disregard to the complainant's property rights;
• by receiving the stolen money, you encouraged others to commit crimes.
  

10. On the "robbery with violence", charge (count No. 1), I start with a sentence of 8 years imprisonment, for accused No. 1. For the mitigating factors, I deduct 2 years from the 8 years, leaving a balance of 6 years. For the aggravating factors, I add 5 years to the 6 years, leaving a total of 11 years imprisonment.

11. Accused No. 1, your total sentence on count No. 1 is 11 years imprisonment. Since you have been remanded in custody for 12 months, I deduct 12 months from the 11 years imprisonment, leaving a balance of 10 years imprisonment.

12. On counts 2, 3 and 4, for each of you, accuseds, I start with a sentence of 2 years imprisonment. For the mitigating factors, I reduce the 2 years by 1 year, leaving a balance of 1 year imprisonment. For the aggravating factors, I increase the 1 year by 1½ years, leaving a total of 2½ years.

13. For Accused No. 1, since you've spent 12 months in custody while on remand, I deduct 1 year from the 2½ years, leaving a balance of 1½ years imprisonment on count No. 2. This 1½ years imprisonment is concurrent to the 10 years imprisonment in count No. 1. Total sentence on count No. 1 and 2 is 10 years imprisonment. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 8 years.

14. For Accused No. 2, since you've spent 7 months in custody while on remand, I deduct 7 months from the 2½ years, leaving a balance of 1 year 11 months imprisonment. This 1 year 11 months imprisonment on count No. 3 is concurrent to your present prison term.

15. For Accused No. 3, since you've spent 6 months in custody while on remand, I deduct 6 months from the 2½ years, leaving a balance of 2 years imprisonment. Given that you are a 1st offender, I deduct another 12 months from the 2 years, leaving a balance of 12 months imprisonment.

16. In summary, Accused No. 1, your total sentence in count No. 1 is 10 years imprisonment, and 1½ years imprisonment in count No. 2, both sentences are concurrent to each other, ie. a total sentence of 10 years imprisonment. You are to serve a non-parole period of 8 years imprisonment, pursuant to section 18(1) of the Sentencing and Penalties Decree 2009.

17. As for Accused No. 2, your total sentence in count No. 3 is 1 year 11 months, concurrent to your present prison term.

18. For Accused No. 3, your total sentence in count No. 4 is 12 months imprisonment.

Salesi Temo
ACTING JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1 : In Person
Solicitors for Accused No. 2 : In Person
Solicitors for Accused No. 3 : In Person