State v Nakeli [2012] FJHC 1211; HAC29.2012 (5 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 29 OF 2012

BETWEEN:

STATE

AND:

SOLOMONI NAKELI

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

Date of Sentence: 5th June 2012

SENTENCE

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

First Count

Statement of Offence

ROBBERY: Contrary to Section 310(1, (a) of the Crimes Decree, No. 44 of 2009.

Particular of Offence

SOLOMONI NAKELI, on the 20th day of January, 2012 at Nadi in the Western Division, robbed Babu Vivesh Chand of $48.00 cash and Nokia mobile phone valued at $99.00, all to the value of $147.00, the property of Babu Vivesh Chand and immediately before committing theft, did use force on the said Babu Vivesh Chand.

Second Count

Statement of Offence

THEFT: Contrary to Section 291 (1) of the Crimes Decree, No. 44 of 2009

Particulars of Offence

Solomoni Nakeli, on the 20th day of January, 2012 at Nadi, in the Western Division, dishonestly appropriated a vehicle registration number: ER 621 valued at $18,000.00, the property of Babu Vivesh Chand.

2. The Accused pleaded guilty to the charges an admitted to the Summary of Facts submitted by the State Counsel. The same is re-produced for easy reference:
   

"Babu Viresh Chand operated a non- Land Transport Authority approved transportation service. He operated ER 621 at night to pick and drop passengers for a set fare. The vehicle is valued at $18,000.00 on 21st January 2012. It is the value given to it by Mr. Chand.

On 20 January 2012 Babu Viresh Chand arrives at Nadi Town looking for passengers at around 7.00pm. At 11.30pm that night he was approached by an iTaukei girl who spoke on behalf of a group of potential passengers. She asked him to take them (2 girls and 3 boys) to Greenland Nightclub. He drove toward Greenland Night Club but along the way, a fair Fijian boy sitting behind him asked his to stop in front of a shop that sold alcoholic beverages near Namotomoto bridge. The boy said he wanted to buy beer.

Babu Viresh Chand stopped at the shop and the boy got off. The boy returned moments later stating that there was no beer at the shop. They directed that Mr Chand take them to Nawakai. The two girls and one of the boy got off at that point and the accused, and another remained in the vehicle. They directed Mr Chand to turn into a dirt road to enable him to relieve himself. Mr. Chand did as he was asked and the accused got out of the van and then returned to the van. He climbed into the van and sat behind Mr Chand.

As Mr Chand was made to drive out back to the main road, the accused reached around the front seat, grabbed Mr. Chand's neck and punched Mr Chand's face. The Accused leaned over and pulled the keys out of the ignition. Mr Chand had opened his door and had gotten out of the vehicle. The accused climbed over the front seat and went out the driver's door and continued to assault Mr Chand outside the vehicle. During the course of the assault, the accused took from Mr Chand $48.00 in cash and a mobile phone valued at $99.00.

Mr Chand's assailant the accused then managed to get Mr Chand into the van. The other boy held Mr Chand inside the van. Mr Chand asked the other boy to let him go. The other boy indicated that he did not know what was to have happened. Mr Chand again pled with this boy to let him go. The accused had gotten into the front seat and was now driving the vehicle. Mr Chand managed to free himself. He jumped out of the vehicle and ran. The boy in charge of looking after Mr Chand came out of the van and chased after him but Mr Chand was able to call out for help, which caused his assailant, the accused to drive off the van.

Passers-by were able to apprehend the boy who jumped out of the van to chase after Mr Chand. After 15-20 minutes, Mr. Chand saw his van coming towards him. Mr. Chand tried to leap into the van to get his keys but the accused driving it swerved to the side, causing the van to come off the road. They tried to apprehend the accused too but he got away from them.

The Police arrived at the scene shortly thereafter, and took the boy who's been apprehended into custody. Together with Mr. Chand, they went to the shop near the bridge and found the rest of the party waiting there.

The Police were able to obtain a statement from Ema Batiluva who had initially stopped Mr Chand's van that night. They also obtain statements from Sekaia Druma, who had been with Ema Batiluva and the accused person had gone with the victim that night after having dropped them off at the shop. They indicated that the name of the boy who was apprehended was Tomasi and the name of the accused was Solomoni. The Police were able to apprehend Solomoni Nakeli and Mr Chand was able to identify Solomoni Nakeli at the Police Station.

Cpl 2820 Sanala Raqora had attended the report and had arrested the other iTaukei boy at the scene and had gone with the victim and the accused to town and had managed to obtain statements from Ema Batiluva and Sekaia Druma. Ema Batiluva gave Cpl Raqora the accused person's details as being "Solo son of Peni Tuva". The accused person was then arrested.

The accused person was interviewed under caution.

The accused person admitted committing the offence. He said he was drunk and wanted money to buy beer. He said he lost the mobile phone after he had run away from the scene.

The vehicle of the complainant was recovered worth $18,000.00.

3. Section 310 (1) of the Crimes Decree prescribes a maximum sentence of 15 years imprisonment for the offence of Robbery.
   
4. Tariff for the offence of Robbery was discussed in State –v- Tuiyanawai (2005) 180 were between 4 years to 7 years imprisonment.
   
5. Considering all, I commence your sentence at 4 years imprisonment.
   
6. Section 291(1) of the Crimes Decree prescribes maximum sentence of 10 years imprisonment for the offence of Theft.
   
7. Tariff was discussed in State –v- Maciu Tamani HAC 290 of 2011, it was accepted a period between 1 year to 4 years imprisonment.
   
8. Considering the tariff, I commence your sentence at 2 years imprisonment.
   
9. Both offences were committed in the same course of transaction. Considering all, this Court direct both sentences to run concurrently.
   
10. Considering the aggravating factors:
    
    1. You have robbed a public service vehicle (PSV) namely a taxi;
       
    2. You have planned the robbery and used other people to commit the offence;
       
    100. You have committed the offence at night;
         
    4. You have stolen the mobile phone;
       
    5. You tried to run over the victim driver
       
    6. Your act made the drivers of the taxies insecure;
       

Considering all, I increase your sentence by 4 years. Now your sentence is 8 years imprisonment.

11. Considering the mitigating circumstances:
    
    1. You have pleaded guilty;
       
    2. You claim you are remorseful;
       
    100. You are married and have a small child;
         
    4. Your period in remand (8 months);
       
    5. You claim you are supporting your father
       

Considering all, I reduce your sentence by 2 years. Now your sentence is 6 years imprisonment.

12. You seek a non custodial and a lenient sentence in your mitigation. This court is mindful of your application. In the meantime the Court should be reasonable by the society at large.
    
13. Among other matters this Court wishes to place on record on two issues. The first one is safety of the taxies and taxi drivers. This society heavily depends on this type of transport. After certain time the public bus transport is rare, then for emergency and urgent traveling, the Public solely depends on this mode of transport. You have assaulted the driver, robbed his mobile, money and the vehicle. It is unacceptable. If this type of assaults continues there won't be any taxi transport for the needy people. Therefore, this Court will not show any mercy for the offenders.
    
14. The next issue was Robbery of Mobile Phone. I have discussed that in several other cases, briefly if I state, the mobile phone is not a luxury item anymore. In fact, it had become one of the essential item to the people especially those who are on the move. Most of the people use their phone for not only calling the others but also storing contact numbers and other details. When it comes to taxi drivers most of them depend on the phone for setting their hires. Snatching their mobile means you stealing their livelihood which should not be tolerated.
    
15. Considering all, I impose 4 years as non parole period.
    
16. You are sentenced to 6 years imprisonment. You will not be eligible for parole before you complete 4 years.
    
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
Accused in Person