State v Vananalagi [2011] FJHC 515; HAC091.2010S (9 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 091 OF 2010S

STATE

vs

1. SEREVI VANANALAGI
2. ROPATE NAISUA
3. SAMUELA RAKOPETA

Counsels: Ms. T. Leweni for the State
Accused No. 1 - In Person
Accused No. 2 - In Person
Accused No. 3 - In Person
Hearings: 2nd to 15th August, 2011
Summing Up: 17th August, 2011
Judgment: 19th August, 2011
Sentence: 9th September, 2011

SENTENCE

1. On 19th August, 2011, this court overturned the unanimous decision of the assessors finding all the accuseds not guilty as charged on all counts, after a 9 days trial. This court found Serevi Vananalagi guilty of three counts of "robbery with violence", contrary to section 293(1)(b) of the Penal Code, Chapter 17 (ie. counts No. 1, 3 and 4); one count of "unlawful use of a motor vehicle", contrary to section 292 of the Penal Code (ie. count No. 2), and one count of "resisting arrest", contrary to section 247(b) of the Penal Code (count No. 5).

2. The court found Ropate Naisua guilty of three counts of "robbery with violence" (ie. counts No. 1, 3 and 4) and one count of "unlawful use of a motor vehicle" (count No. 2). As for Samuela Rakopeta, the court found him guilty of two counts of "robbery with violence" (counts No. 3 and 4). The court convicted all accuseds as charged. The court then adjourned to 9th September 2011 for sentencing. The court has carefully read all the papers submitted by the parties for sentencing.

3. The facts of the case were as follows. On 6th January, 2010, at about 8.45pm, 64 year old Stephen John Paul was in his sitting room, busy with his lap top. Suddenly, he saw three men with their face covered broke into his house. They threatened to injure him with a pinch bar, if he resisted. The men then subdued him by tying him up with an electrical cord. They then ransacked the house, and stole $5,960 worth of his properties, the details of which are itemized in count No. 1.

4. The men then unlawfully used his motor vehicle, registration No. DP748, when they used the same, as a get-away vehicle. They fled the crime scene, and went towards Lami. When caution interviewed by police on 7th and 8th January, 2010, both Serevi and Ropate admitted they were the ones that participated in the above crimes.

5. On 7th January 2010, Serevi and Ropate travelled in Stephen John Paul's motor vehicle from Lami towards Suva. They picked up Samuela Rakopeta on the way. Enroute to Suva City, they decided to rob Niranjans Service Station at Walu Bay. They drove to the Service Station, parked near its shop, went into the shop, and violently robbed its attendant of $643 worth of properties. They later fled the scene in Stephen John Paul's vehicle.

6. While driving around Suva, Serevi, Ropate and Samuela decided to rob the Total Service Station at Vivrass Plaza. This was still the 7th January 2010. They drove Stephen John Paul's car to the front of the Service Station, and Ropate and another went into the shop and threatened its cashier with a pinch bar. They demanded money. They later stole $399 and fled the scene. They fled to Korovou, Tailevu, where they were pursued by police, after refusing to stop, when requested by a police officer. They were later arrested at Waito Settlement, Tailevu. Serevi was also arrested for resisting arrest. When caution interviewed by police between the 7th and 9th January, 2010, all the accuseds admitted the above offences.

7. 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.

8. "Unlawful use of a motor vehicle" carries a maximum sentence of 6 months imprisonment, while "resisting arrest", carries a maximum sentence of 5 years imprisonment. The tariff for "resisting arrest" is a sentence between 6 to 12 months imprisonment: see Hicks vs The State, Criminal Appeal No. HAA 018 of 2011L, High court, Lautoka. The actual sentence will again depend on the mitigating and aggravating factors.

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

(i) For you Serevi and Ropate, you began your crime spree by committing a serious home invasion. Sixty four year old Stephen John Paul was enjoying the comfort of his home on 6th January 2010, after 8.45pm. He was busy with his laptop computer, in his sitting room. Like every citizen of Fiji, he has every right to feel secure and comfortable in his sitting room in his own house. A citizen's house is a place of refuge. However, you two deliberately turn his night into a living hell at that time. You invaded his house, threatened to injure him with a pinch bar, and tied him up with electrical cords. You made him a prisoner in his own home. Then you ransacked his house. You then stole $5,960 worth of his properties, the details of which are itemized in count No. 1. By doing the above, you two showed utter disregard to Stephen John Paul's rights to enjoy his house in peace. By stealing his properties, you two showed utter disregard to his property rights.

(ii) Serevi and Ropate, after violently robbing Stephen John Paul, you two unlawfully used his motor vehicle registration No. DP 748, without his permission, as a get-away vehicle. By committing this crime, you two once again showed your utter disregard to Stephen John Paul's property rights.

(iii) Serevi and Ropate, you then brought Samuela into the fold. You then jointly robbed Niranjans Service Station on 7th January, 2010. You jointly threatened its attendant with a pinch bar, and stole properties therefrom, valued at $634. You then jointly fled in Stephen John Paul's car. Service stations provide an essential service to the travelling public, and those who violently rob them show utter disregard to the rights and comfort of the travelling public, let alone the property rights of the service station owners.

(iv) Serevi, Ropate and Samuela, after robbing the Niranjan Service Station, you then jointly decided to rob the Vivrass Total Service Station, on the same day. You jointly carried out the same type of violent act you did on Niranjan Service Station. You jointly stole $399. In effect, you, as a group, carried out two violent robberies on two different service stations, in a day. By these actions, you have chosen to live outside the law. You showed utter disregard to the complainant's safety and property rights.

(v) The three of you have shown no remorse.

10. The mitigating factors are as follows:

(i) Serevi, you are 25 years old, single and working as a seaman. You have being remanded in custody for 1 year 8 months.

(ii) Ropate, you are 22 years old, married (de-facto) with two young kids. You have being remanded in custody for 1 year 8 months.

(iii) Samuela, you are 25 years old, married with two young children. You have being remanded in custody for 1 year 8 months.

11. I sentence you as follows:

(i) On count No. 1, I start with a sentence of 8 years imprisonment. For the aggravating factors, I add 7 years, making a total of 15 years imprisonment. For the mitigating factors, I deduct 2 years, leaving a balance of 13 years imprisonment. Serevi and Ropate, I sentence each of you to 13 years imprisonment each.

(ii) On count No. 2, Serevi and Ropate, I sentence each of you, to 4 months imprisonment each.

(iii) On count No. 3, Serevi and Ropate and Samuela, I start with a sentence of 7 years imprisonment. For the aggravating factors, I add 5 years, making a total of 12 years imprisonment. For the mitigating factors, I decrease the sentence by 2 years, leaving a balance of 10 years imprisonment. On count No. 3, I sentence each of you, to 10 years imprisonment.

(iv) On count No. 4, I repeat the above process and sentence, for each of you.

(v) On count No. 5, I sentence you Serevi to 3 months imprisonment.

12. Given the principle of totality in sentencing, I order all the above sentences to be concurrent to each other.

13. In summary, the sentences are as follows:

(a) Serevi Vananalagi:

(i) Count No. 1 - 13 years imprisonment.

(ii) Count No. 2 - 4 months imprisonment.

(iii) Count No. 3 - 10 years imprisonment.

(iv) Count No. 4 - 10 years imprisonment.

(v) Count No. 5 - 3 months imprisonment.

All the above sentences are concurrent to each other, that is, a total sentence of 13 years imprisonment.

(b) Ropate Naisua:

(i) Count No. 1 - 13 years imprisonment.

(ii) Count No. 2 - 4 months imprisonment.

(iii) Count No. 3 - 10 years imprisonment.

(iv) Count No. 4 - 10 years imprisonment.

All the above sentences are concurrent to each other, that is, a total sentence of 13 years imprisonment.

(c) Samuela Rakopeta:

(i) Count No. 3 - 10 years imprisonment.

(ii) Count No. 4 - 10 years imprisonment.

Both sentences are concurrent to each other, that is, a total sentence of 10 years imprisonment.

14. The total sentence for each accused are as follows:

(i) Serevi - 13 years imprisonment

(ii) Ropate - 13 years imprisonment

Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, Serevi and Ropate are not eligible for parole until they have served 11 years imprisonment each.

(iii) Samuela - 10 years imprisonment

Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, Samuela is not eligible for parole until he has served 8 years imprisonment. I order so accordingly.

Salesi Temo
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