State v Volau [2011] FJHC 6; HAC085.2009 (24 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 085 0F 2009

BETWEEN

STATE
Prosecution

AND

MANASA VOLAU
The Accused

Counsel: Ms. Fong, State Counsel – Counsel for State
Mr. T. Terere for the accused

Date of Trial/Plea : 06th December, 2010
Date of Sentencing Submissions : 18th January, 2011
Date of Sentence : 24th January, 2011

RULING ON SENTENCE

1. You - Manasa Volua - pleaded guilty to the charge of Robbery with violence punishable under Section 293 (1) (b) of the Penal Code.
   
2. Summary of facts, as submitted by the State, was admitted by you. Court, after being satisfied that your plea of guilt was voluntary and free from any influence, proceeded to accept the plea. Conviction was accordingly entered against you for the commission of the offence as contained in the information.
   
3. Facts revealed that you along with two others had robbed Ram Chandar Gangaiya of a laptop-computer, two Nokia Mobile telephones, assorted jewelleries and $ 500.00 in cash around 01.00 a.m. on 03.09.2007. You used violence on Ram Chandar resulting in injuries in his forehead and intruded into his dwelling house and took possession of the above items.
   
4. It is in light of these admitted facts that you stand convicted for the offence of 'Robbery with Violence' under Section 293 (1) (b) of the Penal Code and present yourself before me to receive your sentence.
   
5. The maximum sentence for the offence of robbery with violence attracted an imprisonment for life under the Penal Code at the discretion of court.
   
6. In passing the appropriate sentence on you, I bear in mind the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree (the Decree), which states:
   

'As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in [the General Sentencing Provisions of the Decree'.

And, I also pay due regard to the objectives and purposes of sentencing as stated in Section 4 of the Decree in considering the sentence against you.

7. In State v Rasaqio [2010] FJHC 287; HAC 155/2007, His Lordship Madigan J. observed that the normal range of sentence for 'Robbery with Violence' is now 10 to 16 years in the High Court after relying on State v Basa: AU0024/04, Wainiqolo v State: AAU0027/06 and State v Rokonabete: HAC 118/07, and imposed a term of 15 year-imprisonment with a non-parole period of 11 years on an accused for 'Robbery with Violence', who was also found guilty of murder in the same transaction.

8. The above principle was adopted in State vs Nileshwar Singh (HAC 022 of 2010) where the starting point for the term of imprisonment was set at 10 years for an offence of 'Robbery with Violence'.

9. In light of the above, I proceed to consider the appropriate sentence on you after taking into account submissions made in mitigation on your behalf. It was submitted that:

(i) You are now 25 years of age;
(ii) You are still single and living with your elderly parents;
(iii) You are really remorseful and want to reform yourself;
(iv) You regularly undergo rehabilitation and a process of counselling whilst currently serving a 12 year term of imprisonment;
(v) Your early guilty plea saving the time and resources of court and those of the State;
(vi) Your guilty plea dispensed with the necessity of a trial and saved the complainant of a possible traumatic agony of going through the ordeal of the crime at your hands by means of evidence in court; and,
(vii) You co-operated with the police and confessed to the police in a genuine gesture of admitting the crime and helped in recovering the some of the robbed property

10. Aggravating factors that need be considered in this case are:
(i) The offence was committed in a dwelling house after causing injuries to an occupant;
(ii) You intruded into the house of the complainant whilst being a member of a gang in the midnight;
(iii) The gang, of which you voluntarily became a member, was armed with deadly weapons; and,
(iv) The value of the property being $ 6000.00.
11. As shown above on the strength of judicial authorities, the offence of robbery with violence now attracts a range of 10-16 years of imprisonment. I am satisfied, as sanctioned by Section 15(3) of the Decree, that a lesser sentence or an alternative sentence would not meet the objectives of sentencing in Section 4 of the Decree in this case. Facts and circumstances of the case instead justifiably persuade me to consider a term of imprisonment that befits the facts of this case.
12. Anyone's home is the place that should be left secured and made free from any act of violence. You, with two of your companions, instilled fear of horror and carried-out your act of robbery having invaded his right to privacy and to property.
13. In the circumstances, I consider that the offence for which you are convicted now, as very serious. I accordingly pick-up 10 years as the starting point and add 4 years to reflect aggravating factors and arrive at 14 years of imprisonment. I consider your guilty plea as a genuine display of your true remorse and give you a substantial reduction of 5 years and reach at 9 years of imprisonment. I further reduce 1 year in recognition of your engagement in the process of reform and rehabilitation whilst in prison.
14. I accordingly impose a term of 8 year imprisonment as your sentence.
15. You have had a previous conviction on 05.08.2005 for the offence of 'Robbery with Violence'. In Addition, two convictions are found to have been registered against you for the offences of 'House Breaking, Entering and Larceny' and 'Criminal Trespass' in 2005 and 2009 respectively.
16. In view of the foregoing, I act under Section 18(1) of the Decree and order that you shall not be eligible for parole until you serve a term of 7 years in imprisonment. The sentence is to be treated as having effected from 06th December, 2010, the date on which you tendered your plea of guilty. I further order, acting under Section 22(1) of the Decree, that you shall serve this term of 7 years concurrently with the term of imprisonment that you are currently serving so long as such term is in force.

24th JANUARY, 2011

PRIYANTHA NAWANA
JUDGE
HIGH COURT
LAUTOKA