State v Amae [2011] FJHC 319; HAC049.2010S (3 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 049 OF 2010S

THE STATE

vs

1. ARE AMAE
2. TAITUSI ROKOSUKA
3. LAISENIA BESE

Counsels : Ms. T. Leweni and Mr. K. Waqavonovono for the State
Accused No. 1 in Person
Accused No. 2 in Person
Mr. S. Waqainabete for Accused No. 3

Hearing : 9th to 12th May, 2011
Summing Up : 16th May, 2011
Judgment : 16th May, 2011
Sentence : 3rd June, 2011

SENTENCE

1. You were all charged with committing two "robbery with violence" offences, contrary to section 293(1)(b) of the Penal Code, Chapter 17. After a trial lasting 4 days, the three assessors returned with an unanimous verdict of guilty as charged on both counts, for all of you. The court agreed with the assessors, found all of you guilty as charged on both counts, and convicted each of you accordingly.

2. This is a serious "robbery with violence" case. The three of you, with others, planned and executed the two robberies together. On 28th March 2009, being unemployed and without money, you all decided to do a robbery. You all planned to rob the Nabua BP Service Station. You with others formed a group to carry out the robbery. You with others went to Makoi and stole a 7-seater van to be used as a getaway vehicle in the robbery. You then bound the van driver and left him at the Suva Cemetery. Then you went to Tamavua-i-wai to collect the weapons for the robbery. These were a cane knife, an iron spade, big stones and empty beer bottles.

3. You and your friends then travelled to Wailoku, and waited there until 3am on 29th March 2009, to do the robberies. After 3am, on 29th March 2009, you and your friends left in the stolen 7-seater van for Nabua BP Service Station. At the Nabua BP Service Station, your group entered the Service Station, attacked its cashier, ransacked the same, stole the items mentioned in the two counts, and fled the scene. The attack on the cashier was very violent. She was threatened with a cane knife and iron spade. Then beer bottles and stones were thrown at her counter. She was sworn at repeatedly. When she tried to flee, she was knocked to the floor when two huge stones were thrown at her. She was lucky to come out of these robberies alive.

4. Robbery with Violence carries a maximum sentence of life imprisonment. The tariff for the offence is a sentence between 6 to 15 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; Baleinakeba v The State, Criminal Appeal No. HAA 008 of 2010, High Court, Lautoka. The actual sentence will depend on the aggravating and mitigating factors.

5. The aggravating factors in this case were as follows:

(i) This was a well planned robbery with violence. The accuseds went around looking for recruits. They went to Makoi, stole a 7-seater van, tied up its driver and dropped him at the Suva Cemetery. Then they went to collect their weapons ie. cane knife, iron spade, rocks and empty beer bottles. They waited until 3am on 29th March 2009, and then attacked and robbed the complainants.

(ii) The manner in which the robbery was carried out was very violent. Empty beer bottles and large stones were thrown at the cashier's counter. She was repeatedly sworn at, and threatened with a cane knife and iron spade. Two large stones were thrown at her, and she was knocked injured to the ground. Her bag and money were then stolen.

(iii) By doing (i) and (ii) above, you showed utter disregard to the cashier's personal safety, and utter disregard to the complainant's property rights.

(iv) For you Are Amae, given your 22 previous convictions in the last 10 years, you have shown no desire to live a crime-free life.

(v) For you Laisenia Bese, you were on a suspended prison sentence from 20th April 2007. You were serving a 2 years prison sentence, suspended for 2 years from 20th April 2007. This sentence did not change your attitude to live a crime-free life from 20th April 2007. You had this sentence when you committed this offence.

6. The mitigating factors were as follows:

Are Amae:

(i) 28 years old, single and unemployed

(ii) reached class 6 level education

(iii) has been remanded in custody for approximately 1 year 4 months from 19.2.10

Taitusi Rokosuka

(i) 21 years old, single and subsistence farmer

(ii) 1st offender

(iii) been remanded in custody for approximately 1 year 4 months from 19.2.10

Laisenia Bese

(i) 29 years old, married with no children

(ii) been remanded in custody for approximately 1 year 4 months from 19.2.10

7. On count No. 1 for all accused, I start with 10 years imprisonment. For the aggravating factors, I add 5 years, making a total of 15 years imprisonment. For the mitigating factors, I decrease the 15 years by two years, leaving a balance of 13 years imprisonment. For count No. 1, each of the accused is sentenced to 13 years imprisonment.

8. I repeat the above process and sentence for count No. 2. The sentence in count No. 2 is also 13 years imprisonment.

9. Both sentence are concurrent to each other, that is, at total sentence of 13 years imprisonment. Since all accuseds have been remanded in custody for 1 year 4 months from 19th February 2010, I deduct 1 year 4 months from the 13 years imprisonment, as time already served. The balance is now 11 years 8 months.

10. Given that Taitusi Rokosuka is a 1st offender, I deduct 5 years 8 months from the 11 years 8 months, leaving a balance of 6 years imprisonment.

11. In summary, the sentences are as follows:

(i) Are Amae and Laisenia Bese are sentenced t o 11 years 8 months imprisonment each. Pursuant to section 18(1) of the Sentencing and

Penalties Decree 2009, both are to serve a non-parole period of 9 years imprisonment.

(ii) Taitusi Rokosuka is sentenced to 6 years imprisonment. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 4 years 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: Office of Legal Aid Commission, Suva