IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 179 OF 2010

BETWEEN:

THE STATE

AND:

JOSEVA VAKANAWAKORO

Counsel: Ms. L. Tabuakuro for the State
Accused In Person

Date of Summing Up: 20th October 2011

Date of Sentencing: 27th October 2011

SENTENCE

1.	The Director of Public of Prosecution preferred one Count of Aggravated Robbery charge punishable under section 311 (1) (a) and one Count of Theft punishable under section 291 of the Crimes Decree.

2.	After the trial all three assessors unanimously found the Accused guilty on both Counts. Being convinced with the evidence and the verdict of the assessors this Court also convicted the Accused for Aggravated Robbery and Theft which are punishable under sections 311(1)(a) and 291 of the Crimes Decree 2009.

3.	According to the evidence of the eye witness on the 26th August 2010, the Accused and another had walked into the workplace of the virtual complainant Krishneel Nand and took cash $1500.00 and an Ifone mobile valued at $3200.00, total value was $4700.00.

4.	In the second Count the Accused together with another person had forcefully taken a red colour Toyota brand double cab vehicle bearing registration number FN 572. The same was subsequently found near CWM hospital car park.

5.	Section 311 (1) (a) of the Crimes Decree prescribes maximum sentence as 20 years imprisonment.

6.	Maximum sentence for the offence of theft is prescribed at section 291 of the Crimes Decree as 10 years imprisonment.

7.	Tariff was discussed in many cases. Recently the Supreme Court in Guston Fredrick Kean vs The State 2011 (FJSC) 11 (12 August 2011) approved the tariff is between 8-14 years imprisonment.

8.	Tariff for the offence of theft was discussed in State vs Chaudhry HAC 69 of 2007 as 2 to 12 months imprisonment.

9.	State Counsel draws the attention of section 10 of the Sentencing and Penalties Decree and moves the Court to declare the Accused as a habitual offender.

10.	Section 10 of the Sentencing and Penalties Decree states as follows:

"This Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for — 

(a) a sexual offence;

(b) offences involving violence;

(c) offences involving robbery or housebreaking;

(d) a serious drug offence; or

(e) an arson offence." 

11.	It will be appropriate to consider the record of previous convictions of the Accused. CRO F/98541 dated 5/9/2010 reproduced for easy reference.

Date	Court	Offence	Sentence	C/F	
23/09/98	Nausori	Found In Possession of Dangerous Drugs	3 months imp	719/98	
06/10/98	Nausori	House Breaking Entering and Larceny	Committed to Boys centre until he attains 17 years	723/98	
"	"	"	9 months imp. Suspended for 2 years	725/98	
25/06/99	Nausori	Burglary	Conditional discharged for next 12 months	280/99	
22/09/99	Lautoka	"	12 months imp.	771/99	
"	"	Larceny in Dwelling house	"	771/99	
"	"	Burglary	12 months imp. Consecutive to cf. 771/99	773/99	
"	"	Larceny in Dwelling House	12 months imp. Consecutive to cf. 771/99	773/99	
"	"	Office Breaking Entering And Larceny	12 months imp. 9 months suspended sentence activated. Sentence in cf. 725/98 to be activated concurrently	774/99	
13/03/01	"	Burglary (1st count)	12 months imp	137/01	
"	"	Larceny in Dwelling House (2nd count)	12 months imp. Both sentence concurrent to cf. 135/01.	137/01	
"	"	Burglary (1st count)	15 months imp.	135/01	
"	"	Larceny in Dwelling house (2nd count)	15 months imp. Both sentence concurrent to cf. 137/01.	135/01	
18/01/02	"	Office Breaking Entering And Larceny	6 months imp.	136/01	
"	"	Act with Intent to Cause Grevious Harm	9 months imp. Concurrent to cf.136/01.	35/02	
20/09/02	Nausori	Shop Breaking Entering And Larceny	3 years imp.	799/02	
03/11/04	"	"	Community work at Nausori Police Station with w.e.f. Mon. 8/11/04 to 19/11/04 under the supervision of SO Nausori 8am to 1pm.	572/04	
27/07/05	"	Burglary (Count 1)	2 years imp.	320/05	
27/07/05	"	Larceny in Dwelling House (Count 2)	2 years imp. Sentence to be serviced concurrently to Count 1	320/05	
29/08/07	"	Drunk and Disorderly	Fined $30.00	334/07	
29/08/07	Nausori	Drunk and Disorderly	Fined $30.00	334/07	
31/08/07	Lautoka	Larceny	Bound over u/s 42 of pc cap 17 in the sum of good behavior and keep peace and come up for sentencing if he commit any other offence in the 12 months	633/07	
25/04/08	Nausori	Being Found By Night In Possession Of Home Breaking Implements.	100 hours community work at Nausori Police Station	364/07	
05/02/09	Nausori	Forfeiture of Bail bond	Acquitted 	32/09	
24/03/09	Nausori	Shop Breaking Entering And Larceny	2 years imp.	645/08	
 
12.	Considering offences committed after 18/01/2002 it appears that the Accused had committed 12 offences out of which 7 offences comes under section 10 (c) of the Sentencing and Penalties Decree.

13.	Section 11 (1) of the said decree states as follows:

"A judge may determine that an offender is a habitual offender for the purposes of this Part— 

(a) when sentencing the offender for an offence or offences of the nature described in section 10; 

(b) having regard to the offender's previous convictions for offences of a like nature committed inside or outside Fiji; and

(c) if the court is satisfied that the offender constitutes a threat to the community."

14. Considering the above section I am convinced that the Accused constitute a theft to the community therefore I declare the Accused as a habitual offender.

15.	Since the Accused is declared as a habitual offender I consider section 12 of the said decree.

"Where any court is proposing to impose a sentence of imprisonment on a person who has been determined to be a habitual offender under section 11 for an offence of a nature stated in section 10, the court, in determining the length of the sentence – 

(a)	shall regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and 

(b)	may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence".

16.	Considering the protection of the community from the Accused I commence the sentence at 14 years imprisonment.

17.	Now I consider the aggravating factors.

(i)	You impersonated as a law enforcement officer namely as a police officer.

(ii)	The robbery was committed in the broad day light.

(iii)	You had invaded a factory.

(iv)	You have stolen a mobile phone. For most of the business people mobile phone is an essential equipment. Further they have all their contacts and business details in the phone memory.

(v)	You had no regards to others life and livelihood.

(vi)	Robbery in a business place will not only affect the victim but the business at large which finally destroys the economy of the country.

Considering all above factors I increase 6 years of your sentence. Now your sentence is 20 years imprisonment.

18.	Considering the mitigating circumstances.

(i)	Your period spent in remand.

(ii)	You are the sole breadwinner of your family.

(iii)	Your wife and 2 children are depending on you.

(iv)	You claim you came from unfortunate background where your parents were separated when you are 3 years.

(v)	Your Counsel ask for a partial custodial sentence.

Considering all mitigating circumstances I reduce 6 years from your sentence. Now your sentence is 14 years imprisonment.

19.	Considering the offence of theft I impose a sentence of 2 years imprisonment.

20.	Since the offence of theft was committed in the same course of transaction I order to implement the sentence concurrent to the above sentence.

21.	Section 18 (1) of the Sentencing and Penalties Decree states as follows:

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole."

22. I act under section 18 (1) of the Sentencing and Penalties Decree and impose 11 years as non parole period.

23.	Summary of your sentence is as follows:

1st Count 14 years imprisonment.
2nd Count 2 years imprisonment.
Both sentence to run concurrently with 11 years as non parole period.

24.	You have 30 days to appeal.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Accused In Person