State v Vakacereivalu [2011] FJHC 724; HAC115.2009S (11 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 115 OF 2009S

THE STATE

v.

1. OSEA VAKACEREIVALU
2. ALIPATE VAKADEWAVOSA
3. ILIASERI SAQASAQA
4. ISIMELI WAKANIYASI

Counsels: Mr. L. Fotofili for the State
Ms. M. Nawasaitoga for Accused No. 1 and 2
Accused No. 3 – In Person
Accused No. 4 – In Person

Hearings: 5th to 21st September, 2011
Summing Up: 23rd September, 2011
Judgment: 26th September, 2011
Sentence: 11th November, 2011

SENTENCE

1. After a trial lasting approximately 13 days, the three assessors unanimously found the four of you guilty as charged on one count of "robbery with violence", contrary to section 293(1)(a) of the Penal Code, Chapter 17, and one count of "unlawful use of a motor vehicle", contrary to section 292 of the Penal Code. The court agreed with the assessors, found you guilty as charged, and convicted each of you accordingly.

2. The brief facts were as follows. The above offences were committed by the four accuseds as a group. They aided and abetted each other in committing the offences. On 31st August, 2009, between 11pm and 12am, the four accuseds met at Accused No.4's house in Newtown, Nasinu, to plan the above crimes. The four accuseds, including their taxi driver, Sailasa Qalivere, were at the house to finalize the robbery plans. Somehow, they had information that the complainant, Sushila Devi, had money in her house, at Vama Place, Navosai.

3. After finalizing their plans, the four accuseds spent 2 hours travelling around Suva city in Sailasa Qalivere's taxi. At about 2.45am on 1st September 2009, the four proceeded to Navosai, as planned. Saqasaqa was sitting in the front passenger seat of the taxi, while the others were in the back seat. Accused No. 1, 2 and 4 were dropped off at Navosai, and they went to the complainant's house. They broke into the complainant's house, and into the bedroom. The accuseds forcefully woke the complainant and her husband, including their daughter. They assaulted the husband, and threated them with serious injuries, if they resisted.

4. The accuseds then ransacked the house, and stole $7,000 cash and other properties itemized in count No. 1. The accuseds fled in the husband's car, registration No. EG 313. Accused No. 4 was driving EG 313, which was used as their get-away car. They drove to Wainibuku, where Saqasaqa and their taxi driver, Sailasa Qalivere were waiting. The other accuseds then went with Saqasaqa in Qalivere's taxi to Accused No. 4's house in Newtown. Accused No. 4 drove EG 313 and abandoned the same near CWM Hospital. At Accused No. 4's house, the accuseds and their taxi driver shared the loot.

5. I have considered your previous convictions. Osea, you have 4 previous convictions going back to 2004. Alipate, you have 47 previous convictions going back to 1989, but for the purpose of this case, I will only consider your previous convictions in the last 10 years, that is, 10 previous convictions from 2003. Saqasaqa, you have 83 previous convictions going back to 1968, but like Alipate, I will only consider your previous convictions in the last 10 years, that is, 5 previous convictions from 2004. Isimeli, you have 27 previous convictions going back to 1997, but like Alipate and Saqasaqa, I will only consider your previous convictions in the last 10 years, that is, 13 previous convictions from 2002.

6. Alipate, Saqasaqa and Isimeli, I must now consider whether or not, this court, should classify each of you as a "habitual offender", pursuant to section 10 and 11 of the Sentencing and Penalties Decree 2009. Your offending in this case concerned a "robbery with violence", on an innocent female member of our community. Alipate, in the last 10 years, you have been convicted of 4 "robbery with violence", 1 of "burglary", 1 with "act with intent to cause grievous harm" and 1 of "conspiracy to commit a felony". Saqasaqa, in the last 10 years, you have been convicted of 2 "robbery with violence". Isimeli, in the last 10 years, you have been convicted of 4 "robbery with violence", 3 "shop and office breaking, entering and larceny", 1 "theft", and 3 "escaping from lawful custody". Pursuant to section 11 of the Sentencing and Penalties Decree 2009, I classify Alipate and Isimeli habitual offenders, on the grounds that, in the last 10 years, both have committed more than 4 "robbery with violence", and consequently, they are a threat to the community.

7. I have taken note of each of the accuseds' written plea in mitigation. Osea, you are 28 years old, married with 2 young children, aged 8 and 5 years old. You reached Form 5 level education. You were working as a casual labourer for "Fiji Fish", and also worked as a subsistence farmer. I understand you are your family's sole breadwinner. Alipate, you are 45 years old, married with 3 children aged 19, 18 and 9 years old. You reached Form 5 level education. You worked as a dock worker between 2001 and 2010, earning approximately $180 per week. I understand, you contribute to the upkeep of your family.

8. Saqasaqa, you are 57 years old, married with 6 children. You have spent most of your time in prison, for various offences. It is accepted that you have natural intelligence and common sense, given your various submissions to the court. It is also accepted that you are trying to turn a new leaf in life, by participating in positive social activities. Isimeli, you are 28 years old, married with a young child. You reached Form 2 level education. You said, your mother passed away when you were 5 years old and your father passed away, when you were 20 years old. You said, you earned your living by selling food.

9. 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. The actual sentence will depend on the aggravating and mitigating factors.

10. "Unlawful use of a motor vehicle" carries a maximum sentence of 6 months imprisonment. The tariff for this offence is often a sentence between 1 to 5 months imprisonment.

9. The aggravating factors for the four of you, were as follows:

(i) This was a home invasion on Suhila Devi, her husband and their daughter, in the early morning (2.45am) of 1st September, 2009. This family was fast asleep in their bedroom, at their home, when the four of you, put in place a course of action that resulted in them been forcefully awoken, threatened with serious injuries, their home ransacked and their properties stolen;

(ii) Your course of action resulted in $7,000 cash been stolen from them, and other properties itemized in count No. 1 been stolen. None of these properties were recovered;

(iii) In addition, your group action resulted in Vinay Prakash's car, registration No. EG 313, been unlawfully used by the four of you, as a get-away vehicle, after the robbery.

(iv) Your group action showed a total disregard to the complainant's family right to safety and dignity;

(v) By stealing their properties, your group showed utter disregard to their property rights.

10. The mitigation factors were as follows:

(1) Osea Vakacereivalu:

(i) 28 years old, married with 2 young children;

(ii) reached Form 5 level education;

(iii) works as a casual worker and subsistance farmer;

(iv) has been remanded in custody for approximately 2 years.

(2) Alipate Vakadewavosa:

(i) 45 years old, married with 3 children;

(ii) reached Form 5 level education;

(iii) a dock worker by profession;

(iv) has been remanded in custody for approximately 1 year 11 months.

(3) Iliaseri Saqasaqa:

(i) 57 years old, married with 6 children;

(ii) trying to turn a new leaf in life by engaging himself in positive community projects;

(iii) has spent approximately 3 months while been remanded in custody.

(4) Isimeli Wakaniyasi:

(i) 28 years old, married with 1 child;

(ii) reached Form 2 level education;

(iii) sells cooked food for a living;

(iv) has been remanded in custody for approximately 2 years.

11. On the "robbery with violence" charge (count No. 1), for each accused, I start with a sentence of 8 years imprisonment. I add 6 years imprisonment for the aggravating factors, making a total of 14 years imprisonment. I deduct 3 years imprisonment for the mitigating factors, leaving a balance of 11 years imprisonment. Given the fact that Osea and Iliaseri are not classified, as "habitual offenders" pursuant to section 11 of the Sentencing and Penalties Decree 2009, in the last 10 years, I make a further deduction of 3 years imprisonment from the 11 years imprisonment, leaving a balance of 8 years imprsionment for them.

12. On the "unlawful use of a motor vehicle" charge (count No. 2), I sentence each accused to 3 months imprisonment, concurrent to the above sentence.

13. In summary, the sentences for each accused are as follows:

(i) Count No. 1: Robbery with Violence:

Osea Vakacereivalu - 8 years imprsionment

Alipate Vakadewavosa - 11 years imprisonment

Iliaseri Saqasaqa - 8 years imprisonment

Isimeli Wakaniyasi - 11 years imprisonment

(ii) Count No. 2: Unlawful Use of Motor Vehicle:

Each accused is sentence to 3 months imprisonment, concurrent to the sentence in count No. 1.

14. In serving their total 8 years imprisonment, both Osea and Iliaseri are not eligible for parole until, they have served 6 years imprisonment each.

15. As for Alipate and Isimeli, because they are "habitual offenders", in serving their total 11 years imprisonment, they are not eligible for parole, until they have served 9 years imprisonment each. This is necessary, because they are a threat to the community, and the community deserved to be protected from them. I order so accordingly.

Salesi Temo
JUDGE

Solicitors for the State: Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1: Legal Aid Commission, Suva
Solicitors for Accused No. 2: Legal Aid Commission, Suva
Solicitors for Accused No. 3: In Person
Solicitors for Accused No. 4: In Person