State v Tuimereke [2011] FJHC 357; HAC198.2010 (23 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 198 OF 2010

BETWEEN:

THE STATE

AND:

WAISAKE TUIMEREKE

Counsels : Mr. Fotofili for the State
Accused in Person

Date of Hearing : 22nd June 2011
Date of Sentence : 23rd June 2011

SENTENCE

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

"WAISAKE TUIMEREKE is charged with the following offence:

Count 1

Statement of Offence

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

Particulars of Offence

WAISAKE TUIMEREKE together with others, on the 7th day of January, 2010 at Lot 13 Aidney Road, Raiwaqa in the Central Division, robbed SUSHILA BEN LAL d/o BUKHAN DASS of gold coloured Citizen Brand wrist watch worth FJD $80 and immediately before such robbery did threaten to use personal violence to the said SUSHILA BEN LAL d/o BUKHAN DASS.

Count 2

Statement of Offence

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

Particulars of Offence

WAISAKE TUIMEREKE together with others, on the 7th day of January, 2010 at Lot 13 Aidney Road, Raiwaqa in the Central Division, robbed DIPA KATRI d/o BAGWAT LAL of FJD $60 cash, SONY ERICSSON mobile phone worth FJD $150 all to the total value of FJD $210 and immediately before such robbery did threaten to use personal violence to the said DIPA KATRI d/o BAGWAT LAL.

Count 3

Statement of Offence

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

Particulars of Offence

WAISAKE TUIMEREKE together with others, on the 7th day of January, 2010 at Lot 13 Aidney Road, Raiwaqa in the Central Division, robbed DRUTI KHARTI d/o BAGWAT LAL of FJD $1000 cash, SAMSUNG mobile phone worth FJD $150, memory chip worth FJD $30, IPOD wire worth FJD $50, together with ATM card and identification cards all to the total value of FJD $1,430 and immediately before such robbery did threaten to use personal violence to the said DRUTI KHARTI d/o BAGWAT LAL."

2. When the case was called before the Learned Magistrate this Accused pleaded guilty to the charges against him. The Learned Magistrate considering all circumstances referred the matter to the High Court for Sentencing.

3. When the case was taken up in the High Court the Accused once again pleaded guilty to all charges against him and admitted to the summary of facts.

4. State provided the summary of facts as follows:

"It was Wednesday the 07/01/09 at about 2am when Sushila Ben Lal d/o Bukhan Dass (Victim in Count 1) aged 60 years, Dipa Katri d/o Bagwat Lal (Victim in Count 2) aged 30 years, Druti Kharti d/o Bagwat Lal (Victim in Count 3) aged 33 years together with Bagwat Lal were asleep at their home at 13 Audrey Road, Raiwaqa when the Accused Waisake Tuimereke (born 06/06/88) together with at least 4 other males broke into the house.

2 days before the robbery, the Accused together with his friends met to plan the robbery. The Accused though was not the "mastermind".

On the morning of the robbery, the Accused and his accomplices armed themselves with beer bottles, a pinch bar and knives. They also wore masks.

They climbed over the fence of the residence at 13 Audrey Road, Raiwaqa and forcefully kicked open the wooden kitchen door, after using their pinch bar to pry apart or open parts of it. Damage to the kitchen door is estimated to be FJD$200.

The Accused did not enter the rooms in the house but went into the living room of the house looking for valuables to steal but he could not find anything. It was his accomplices who threatened the 3 victims with knives or physical violence in-order that the victims give them cash and valuables.

One of his (Accused) Accomplices even pushed Sushila Ben Lal onto the floor whereby she received superficial injuries to his head. Sushila Ben Lal was not medically examined at the hospital because the injury to her head was minor.

The Accused and his accomplices after having threatened the victims with violence stole:

- a gold coloured Citizen band wrist watch from Sushila Ben Lal

worth FJD $80.00 (Count 1)

- FJD $60.00 cash from Dipa Katri and her Sony Ericsson mobile phone worth $150.00 all to the total value of FJD$210.00 (Count 2)

- Stole $1000.00 cash, Samsung mobile phone worth FJD$200.00, Nokia mobile phone worth $150.00, memory chip worth $30.00, IPOD wire worth $50.00 plus ATM and ID cards all to the total value of FJD $1,430.00 (Count 3)

The Accused and his accomplices fled from the house soon thereafter.

After police investigation, the Accused was arrested and interviewed under caution at the Samabula Police Station on 27.01.2009 and admitted his involvement in the robbery. The Accused was also taken to 13 Audrey Road, Raiwaqa and confirmed to police that it was the same house he robbed with his accomplices. The Accused admitted receiving FJD$175.00 cash as his share for participating in the robbery but had used it all on liquor.

Nothing was recovered by Police from the Accused."

5. Being convinced with the plea to be unequivocal this Court found the Accused guilty and convicted him as charged.

6. Section 293(1) of the Penal Code prescribes a maximum punishment as life imprisonment.

7. Tariff to the offence of Robbery with Violence is discussed in Gustan F Kean, Criminal Appeal AAU 0048 of 2008. The Court of Appeal endorsed the tariff for this offence is between 6 to 14 years imprisonment.

8. Other 3 suspects who were produced in the Magistrate's Court pleaded guilty to the charges. Two suspects were sentenced to 3 years imprisonment and one was sentenced to 4 years imprisonment.

9. Considering the nature of the offence and the previous convictions the Magistrate had decided this is a fit and proper case for the High Court to sentence. This is absolutely legal and appropriate under the Sentencing and Penalties Decree.

10. If the Accused is imposed a higher sentence from his co-accused will that be disparity to the Accused?

11. The Fiji Court of Appeal in Sisa Kalisoqo v Reginam Criminal Appeal No. 52 of 1994 said the following:

"In New Zealand and in England disparity of sentence is accepted as a ground of appeal and it is had regard to only where the disparity appears unjustifiable and gross – see Rameka (1973) 2. N.Z.L.R 592 and Pitson (1972) 56 Cr. App. R. 391. But at the end of the day, what has to be shown is that the appellant has received too long a sentence (Richards (1955) 39 Cr. App. R. 191)."

12. In the Fiji Court of Appeal case of Ratumaiya v The State [ 2006] FJCA 21;
AAU0060.2005S (24 March 2006), the following was discussed:

[16] In the recent case of Bote v The State [2005] FJCA 58; Criminal Appeal No. AAU0011 of 2005, this Court observed:

'The parity principle applies where the sentences imposed on con-offenders are so disproportionate as to leave the offender with the larger sentence with a justifiable sense of grievance.'

[17] Blackstone's Criminal Practice (1993) at E 1.12 states the following:

'Where there is disparity between sentences imposed on co-accused, the higher sentence may be reduced on appeal where right-thinking members of the public, with full knowledge of the facts and circumstances, learning of the sentence would consider that something had gone wrong with the administration of justice.'

[18] In the recent New Zealand High Court case of Barnett v Police (unreported) CRI 2005 – 470 -00034 (judgment stated 8 September 2005, Venning J. adopted the principles applicable to issues of parity between co-accused expounded by the New Zealand Court of Appeal in R v Lawson [1982] 2 NZLR 214. After noting that, 'the court would have regard to disparity is unjustifiable and gross,' the Judge quoted the following passage from the Court of Appeal judgment:

'Sentence is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly. It is for this reason that the disparity in sentences imposed on co-offenders may justify a reduction in the sentence imposed on one which would otherwise be appropriate.'

[19] In Barnett, where the appellant had pleaded guilty to a charge of aggravated robbery, the issue before the court was whether the disparity between sentences of three years six months imprisonment for the appellant and two years imprisonment, with leave to apply for home detention, in the case of the co-accused was justifiable and gross.

[20] After considering all the circumstances of the case before him, Venning J. held that the end result, when looked at objectively, was that the sentences were so disparate as to make the appellant's sentence, which otherwise might have been appropriate, inappropriate. In His Honour's words:

'A reasonably minded independent observer aware of all the circumstances of the offence and the offenders faced with that disparity could well considers that there was something wrong.' The sentence of three years and six months was quashed and substituted by a sentence of two years six months.

13. Considering all above authorities, if the accused is imposed of a different sentence from the co-accused persons, it will not be disparity.

14. Considering all circumstances the sentence of the Accused is commenced at 8 years imprisonment.

15. Considering the aggravating factors.

a) It was a gang robbery.

b) It was a planned act.

c) Weapons like knives were used.

d) One of the victims who was 60 years old was injured.

e) All 4 victims were women and they were vulnerable.

f) No properties were recovered.

Considering the above aggravating factors the sentence of the Accused is increased by 6 years. Now the sentence is 14 years imprisonment.

16. The Accused submits following mitigating circumstances.

a) He had not committed the actual violence.

b) He fully co-operated with the police.

c) Pleaded guilty at a very early stage of the trial.

d) He is remorseful.

e) He claims that he was brought up by a single mother, step father and

he didn't get proper and appropriate childhood.

f) He claims he had learned his lesson and he will not commit any offence in

the future.

Considering all mitigating circumstances his sentence is reduced by 7 years. Now the sentence is 7 years imprisonment.

17. The Accused submits that he is serving two sentences simultaneously and he is pleading the Court to implement this sentence also concurrently.

18. Considering the nature of the offences I do not think that a person who committed several offences at different times and not in the same course of transaction can be given a concurrent sentence unless the trial judge decides fit and proper. In my view giving concurrent sentence for several and different offences is unjust towards the society. Therefore this Court imposes the sentence consecutive to the existing sentence.

19. The sentence will come into operation after the Accused completes his sentences which were presently in operation.

20. Section 18 (2) of the Sentencing and Penalties Decree states as follows:

"If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1)."

21. Considering the nature of the mitigating circumstances and the other sentences in
operation this Court does not fix a non parole period. The Accused can earn his early release from the prison in accordance with relevant laws.

22. The Accused is sentenced to 7 years imprisonment without a non parole period.

23. 30 days to appeal.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Applicant in Person