State v Sadrugu [2012] FJHC 1210; HAC116.2011 (5 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 116 OF 2011

BETWEEN:

STATE

AND:

SIONE SADRUGU
[1st Accused]

SOLOMONI NAKELI
[2nd Accused]

Counsel: Mr. T. Qalinauci for State
Both Accused in Person

Date of Sentence: 5th June, 2012

SENTENCE

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

First Count

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311(1)(a) of the Crimes Decree Number 44 of 2009.

Particulars of Offence

SIONE SADRUGU and SOLOMONI NAKELI on the 28th day of May, 2011, at Nadi in the Western Division, robbed John Geoffery Abraham of $FJ100.00 in cash and a gold longiness Wrist Watch valued at $FJ1300.00, all to the total value of $FJ1400.00, the property of John Geoffery Abraham.

Second Count

Statement of Offence

ABDUCTING WITH INTENT TO CONFINE A PERSON: Contrary to Section 281 of the Crimes Decree Number 44 of 2009

Particulars of Offence

Sione Sadrugu and Solomoni Nakeli, on the 28th day of May 2011, at Nadi in the Western Division, abducted John Geoffery Abraham with intent to cause that person to be secretly and wrongfully confined.

Third Count

Statement of Offence

RAPE: Contrary to Section 207(1)(2)(b) of the Crimes Decree Number 44 of 2009.

Particulars of Offence

Sione Sadrugu, on the 28th day of May 2011, at Nadi in the Western Division, inserted his penis into the anus of John Geoffery Abraham without his consent.

2. Both Accused Persons pleaded guilty to the 1st and 2nd Count. The 1st Accused submitted to Court that he did not rape the virtual complainant. It was the complainant who attempted to involve in sexual activities. Both Accused Persons admitted the Summary of facts submitted by the State Counsel.

3. The Summary of Facts is re-produced for easy reference.

"On the 26th May 2011 the complainant, John Geoffery Abraham (the complainant), came to Fiji to apply for a vat rebate on a land at Naisoso, Nadi. He checked in a room at the Novotel Hotel in Nadi whilst he was in Fiji.

"On the 27th May, 2011 after meeting with some accountants, the complainant then went to Nadi Club to have a few beers. Whilst the complainant was having beer, Accused 1 and Accused 2 then approached him. The complainant then offered them beers and also bought some beer after the two accused persons had asked for a packet of BH 10 cigarettes. They then got to know each other.

The complainant and the accused persons then went to Tu's place at Martintar, Nadi and had dinner. Then Vilitati Vuadromo (PW2) later joined them. The complainant, Accused 1, Accused 2 and PW2 then went to After Dark Nightclub.

At the After Dark nightclub they drank beer for some time and they were joined by another Fijian man. The complainant, PW2 and the Fijian man went back to Novotel Hotel, Nadi. The complainant then realized that his mobile phone was missing and he went back to the same night club. At the night club, the complainant met Accused 2 and asked him if he had stolen his phone but Accused 2 told the complainant that PW2 must have stolen it. The complainant asked Accused 2 to help him to look for PW2.

On the early morning of the 28th May 2011, at about 3.00am, the complainant, Accused 1 and Accused 2 then went to look for PW2 somewhere near Denarau. At a gravel road near Denarau, Accused 2 got off the rental car and walked towards the house of PW2 and the complainant followed him. Accused 1 was inside the car and switched the car lights off. Then Accused 1 ran towards the complainant and held him. Accused 2 then told the complainant to get all the things out of his pocket. The accused persons managed to take everything out of the complainant's pocket namely, $FJ100 cash, business card and handkerchief. Accused 2 then told the complainant to take out his gold Longiness wrist watch which he gave to Accused 2. The gold Longiness wrist watch is worth $FJ1300.00.

During the robbery, Accused 1 grabbed the complainant around his neck and pulling his shirt tightly. The complainant pleaded to the accused persons not to kill him. After the robbery, the accused persons took the complainant, drove the car towards Nadi but at the roundabout they turned left and headed towards a place where there was tramline. A few meters ahead they stopped the car and the accused persons told the complainant to get off the car. The accused persons then told the complainant that they were going to his Hotel room with the car key and take his money.

Accused 1 and Accused 2 were arrested and caution interviewed.

Accused 1 confessed in his caution interview in Q & A – 47 that he and Accused 2 took $FJ100.00 and the gold watch. He state he had used the money to buy the beer refer to [Q &a – 49]. He also admitted that they were going to put the complainant in the boot of the car and were part of a group from Suva and they took the complainant to the tramline and let him out. [Refer to Q & A – 52 & 53]. In addition, he also made confession in his charge statement.

Accused 2 stated that he received $FJ 100.00 and the wrist watch from Accused 1 (refer to Q & A – 70]. In Q&A – 90, he admitted robbing the complainant. He admitted he gave the watch to his aunt [refer to Q&A – 83]. He also admitted that he force the complainant to sit at the back of the vehicle and drove the complainant's vehicle [refer &A – 88].

The police recovered the gold Longiness wrist watch from the aunt of Accussed's 2."

4. Being convinced with the plea to be unequivocal, this Court found both Accused Persons guilty on the 1st and 2nd Count and convicted for Aggravated Robbery and Abducting with intent to confine a person punishable under Section 311 (1) (a) and 281 of the Crimes Decree respectively.

5. Section 311 (1) prescribes maximum penalty as imprisonment of 20 years for the offence of Aggravated Robbery.

6. Maximum sentence for the offence of Abduction with intent to confine a person is prescribed at Section 281 of the Crimes Decree as 7 years imprisonment.

7. Tariff for the offence of Aggravated Robbery was confirmed by the Supreme Court in a recent case of Guston Fredrick Kean –v- The State [2011] FJHC 11 (12th August, 2011) as 8 years to 14 years imprisonment.

8. Tariff for the offence of Abducting with intent to confine a person was discussed in Sanoko –v- State [ 2009] FJHC 91 the Court stated it will be between 6 months and 18 months.

9. I commence your sentence for the offence of Aggravated Robbery at 8 years imprisonment.

10. Similarly, I commence your sentence for the offence of Abducting with intent to confine a person at 12 months imprisonment.

11. Both offences were committed in the same course of transaction, considering the available factors before the Court. I order both sentences to run concurrently.

12. Considering the aggravating factors:

1. Both offences committed during late eveni ng;
   
2. $100.00 was not recovered.
   

Considering all mitigating factors, I increase your sentence by 1 year. Now your sentence is 9 years imprisonment.

13. Considering the mitigating circumstances of the 1st Accused Sione Sadrugu:

1. You are a first offender;
   
2. You are 22 years old and young offender;
   

100. You were in remand (7 months);
     

4. The stolen watch was recovered;
   
5. You are remorseful;
   
6. You have pleaded guilty;
   
7. You are a farmer, and supporting your parents;
   

Considering all your mitigating circumstances I reduce your sentence by 3 years. Now your sentence is 6 years imprisonment.

14. Considering the mitigating circumstances of the 2nd Accused Solomoni Nakeli:

1. Pleaded guilty;
   
2. You claim you are a 1st offender (you submit that you have 4 pending cases at the Magistrates Court);
   

100. You claim you are remorseful;
     

4. You are married and have a son;
   
5. You claim that you are supporting your father;
   
6. Period in remand (7 months);
   
7. The watch was recovered.
   

Considering all mitigating circumstances I reduce your sentence by 2 years. Now your sentence is 7 years imprisonment.

15. Considering the nature of the offence, your early plea and you are first offenders. I act under section 18(2) of the Sentencing and Penalties Decree and I decline to impose a non parole period. Your release will be governed by the rules and regulations of the Prison authorities.

16. Summary:

1. 1st Accused Sione Sadrugu is imposed of 6 years imprisonment.
   
2. 2nd Accused Solomoni Nakeli is imposed of 7 years imprisonment.
   

17. 30 days to appeal to the Court of Appeal.

S. Thurairaja
Judge

At Lautoka
5th June 2012

Solicitors: The Office of the Director of Public Prosecution for State
Both Accused are in Person