State v Vuluma [2014] FJHC 320; HAC48.2012 (9 May 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 48 OF 2012

STATE

v

LAISENA VULUMA
JOLAME VUNITURAGA

Counsels : Mr. S. Babitu for the state
Both accused in person

Date of Sentence : 9 May 2014

SENTENCE

1. You are charged as follows:
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

EREMASI TASOVA, LAISENIA VULUMA and JOLAME VUNITURAGA on the 12th day of March, 2012 at Lautoka in the Western Division robbed JACKSON BHAI and SARWAN SINGH of 10 cartons of assorted cigarettes valued at $29,943.10, $2,010.60 cash, $359.80 cheque, Nokia mobile phone valued at $400.00 all to the total value of $32,713.50, property of British American Tobacco Company and at the time of robbery did use personal violence on the said JACKSON BHAI and SARWAN SINGH.

SECOND COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

EREMASI TASOVA, LAISENIA VULUMA and JOLAME VUNITURAGA on the 12th day of March, 2012 at Lautoka in the Western Division robbed JACKSON BHAI of Nokia mobile phone valued at $100.00 and cash of $120.00 all to the total value of $220.00 and at the time of such robbery did use personal violence on the said JACKSON BHAI.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

EREMASI TASOVA, LAISENIA VULUMA and JOLAME VUNITURAGA on the 12th day of March, 2012 at Lautoka in the Western Division, stole a Hyundai H1 motor vehicle registration number: FW 722, valued at $89,000.00, the property of British American Tobacco Company.

2. On 2nd May 2014 at the end of Voir-dire inquiry you pleaded guilty to all three charges against you and admitted the Summary of Facts on the same day.
   
3. The Summary of Facts submitted by the State Counsel states as follows:

On the 12th of March, 2012 at about 10.30 am at Naikabula Road, Lautoka, Jackson Bhai and Sarwan Singh), both employees of British American Tobacco Company, were on their normal delivery routine using a Black Hyundai vehicle registration number FW 722, the property of British American Tobacco.

They stopped in Naikabula, Lautoka, at Singh's Shop owned by Sumindra Kaur when Laisenia Vuluma and Jolame Vunituraga approached them. They threatened and assaulted Jackson Bhai and Sarwan Singh.

Laisenia Vuluma and Jolame Vunituraga stole the following items:

Count 2

• 10 cartons of assorted cigarettes valued at $29,943.10
• $2,010.60 cash
• $359.80 cheque
• Nokia mobile phone valued at $400.00
  

Laisenia Vuluma and Jolame Vunituraga stole the following items:

Count 3

• Nokia mobile phone valued at $100.00
• $120.00 cash
  

Count 4

After robbery, then you with another got into the black Hyundai registration number: FW 722 and drove away.

The mobile of Jackson Bhai was then recovered from Laisenia Vuluma.

You were arrested and caution interview by police.

Laisenia Vuluma confessed in his caution interview. He admitted that he was part of the robbery. He also stated that he sat on the front passenger seat [Q&A: 49]. He stole the money from the dashboard [Q&A: 57 & 58]. He received about $300 as his share [Q&A: 65]. He stated that he has used the money and one Gross of BH 10 cigarettes and has some at home. He admitted that the phone he took from the shop when it was shown to him [Q&A: 79]. In addition packets of BH cigarettes and plastic bag containing 5 cent coins was recovered from his house [Q&A: 80-81]. He also made some statement on his charge he apologizes for what he did.

Jolame Vunituraga confessed in his caution interview. He stated that he was part of the robbery. During the robbery he boarded the black vehicle and sat on the driver's seat [Q&A: 39]. He drove the vehicle and parked somewhere in the pine forest [Q&A: 41 & 43]. He stated that the cartons contain cigarettes. He also admitted that he received $300 as his share [Q&A: 51]. He stated that he had used the money [Q&A: 56].

Subsequently, Laisenia Vuluma and Jolame Vunituraga were formally charged for two counts of Aggravated Robbery: contrary to Section 311 (1) (a) and Theft of motor vehicle contrary to Section 291 of the Crimes Decree, No. 44 of 2009.

4. After carefully considering the Plea of both of you to be unequivocal, this Court found you guilty for two counts of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Decree, and one count of Theft of a Motor Vehicle contrary to Section 291 (1) of the Crimes Decree No. 44 of 2009.
   
5. Accused Laisenia Vuluma & Jolame Vunituraga you stand convicted for two counts of Aggravated Robbery and one count of Theft of a Motor Vehicle.
   
6. The maximum sentence for Aggravated Robbery is 20 years and Theft of a Motor Vehicle is 10 years.
   
7. The tariff for Aggravated Robbery is well settled now.
   
8. In State v Rokonabete [2008] FJHC 226; HAC 118.2007 (15 September 2008) it was held by Hon. Mr. Justice Danieal Goundar that:
   

"The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or treat of force that will always be an important aggravating feature. Group offending will aggregate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ring leader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and person providing public transport, that will be an aggravating factor. Other aggravating factors may include the volume of items taken and the fact that an offence was committed whilst the offender was on bail.

The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved."

9. In State v Manoa [2010] FJHC 409; HAC 061.2010 (6th August 2010) it was held by Hon. Mr. Justice Daniel Goundar that:
   

"The maximum penalty for robbery with violence under Penal Code is life imprisonment, while the maximum penalty for aggravated robbery under the Crimes Decree is 20 years imprisonment. Although the maximum sentence under the Decree has been reduced to 20 years imprisonment, in my judgment, the tariff of 8-14 years imprisonment established under the old law can continue to apply under the new law. I hold this for two reasons. Firstly, the established tariff of 8-14 years under the old law falls below the maximum sentence of 20 years under new law. Secondly, under the new law, aggravated robbery is made an indictable offence, triable only in the High Court, which means the Executive's intention is to continue to treat the offence seriously."

10. I take a starting point of 10 years for each of you for each count of Aggravated Robbery.
    
11. Aggravating factors;
    
    • (i) Robbery was well planned,
    • (ii) High value of the items.
      
12. I add 2 years for above and now your sentence is 12 years.
    
13. Mitigating circumstances of Laisenia Vuluma;
    
    • (i) You are a first offender at the age of 29 years,
    • (ii) Family depend on you,
    • (iii) You are remorseful .
      
14. Considering above, I deduct 2 years from your sentence, now your sentence is 10 years.
    
15. I deduct further two years for the Guilty Plea. Now your sentence is 8 years.
    
16. You were in remand for a period of 1 month 15 days. That period to be deducted from the sentence. Now your sentence is 7 years 10 months and 15 days.
    
17. Mitigating circumstances of Jolame Vunituraga;
    
    • (i) You are a father of 7 years old son and sole bread winner of the family,
    • (ii) You are remorseful.
      
18. I deduct 6 months for the above and now your sentence is 11 years and 6 months.
    
19. I deduct 2 years for your Guilty Plea. Now your sentence is 9 years 6 months.
    
20. You were in remand for 2 months. That period to be deducted from the sentence. Now your sentence is 9 years and 4 months.
    
21. Acting under Section 18 (1) of the Sentencing and Penalties Decree, I fix a non-parole period of 6 years for Laisenia Vuluma and non-parole period of 8 years for Jolame Vunituraga.
    
22. Considering all, I order sentence of 9 months for the count of Theft of a Motor Vehicle for Laisenia Vuluma and sentence of 18 months for Jolame Vunituraga.
    
23. All these offences were committed in one transaction. Acting under Section 22 (1) of the Sentencing Penalties Decree, I order all sentences of each accused to run concurrently.
    

Summary

24. Lasenia Vuluma you are sentenced as follows:
    
    • (i) 1st count of Aggravated Robbery 7 years 10 months 15 days with non-parole period of 6 years.
    • (ii) 2nd count of Aggravated Robbery 7 years 10 months 15 days with non-parole period of 6 years
    • (iii) 3rd count of Theft of a Motor Vehicle 9 months.
      

All sentences to run concurrently with one non-parole period of 6 years.
Jolame Vunituranga you are sentenced as follows:

(i) 1st count of Aggravated Robbery 9 years 4 months with non-parole period of 8 years.
(ii) 2nd count of Aggravated Robbery 9 years 4 months with non-parole period of 8 years.
(iii) 3rd count of Theft of a Motor Vehicle 18 months.

All sentences to run concurrently with one non-parole period of 8 years.

25. 30 days to Appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
09th May 2014

Solicitors : Office of the Director of Public Prosecution for State
Both Accused in person