State v Usumaki [2015] FJHC 259; HAC338.2012S (20 April 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 338 OF 2012S

STATE

vs

1. JOSAIA USUMAKI
2. KUNAL PRASAD
3. SOLOMONI QURAI
4. TEVITA SUGU
5. EPELI QARANIQIO
6. DESHWAR DUTT
   

Counsels: Mr. L. Fotofili and Ms. S. Lodhia for State
Mr. K. Singh for Accused No. 1
Mr. E. Koroi for Accused No. 2
Ms. R. Drau for Accused No. 3
Ms. T. Leweni for Accused No. 4
Accused No. 5 in Person
Mr. S. Kumar for Accused No. 6

Hearings: 2, 3, 5, 6, 10, 11, 13, 16, 17 and 18 February, 2015
Summing Up: 20 February, 2015
Judgment: 23 February, 2015
Sentence: 20 April, 2015

SENTENCE

1. On 23 February 2015, the court found all of you guilty and convicted you on the following information:
   

FIRST COUNT
Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311 (1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSAIA USUMAKI and KUNAL PRASAD together with others on the 19th day of September 2012 at Samabula in the Central Division, robbed the Bank of the South Pacific (BSP) and stole $70,000 cash in Fijian and other foreign currencies.

SECOND COUNT
Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to section 306 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SOLOMONI QURAI between the 19th and 21st day of September 2012, dishonestly received stolen property namely cash in the approximate value of FJD$3,350, USD$100 and AUD$100, knowing or believing the property to be stolen.

THIRD COUNT
Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to section 306 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TEVITA SUGU between the 19th and 21st day of September 2012, dishonestly received stolen property namely cash in the approximate value of FJD$1041, knowing or believing the property to be stolen.

FOURTH COUNT
Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to section 306(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

EPELI QARANIQIO between the 19th and 21st day of September 2012, dishonestly received stolen property namely cash in the approximate value of FJD$2,000, USD$45 and AUD$120, knowing or believing the property to be stolen.

FIFTH COUNT
Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to section 306(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

DESHWAR DUTT between the 19th and 21st day of September 2012, dishonestly received stolen property namely cash in the approximate value of FJD$6,400 and AUD$510, knowing or believing the property to be stolen.

2. The brief facts were as follows. On 17 September 2012, Mr. Usumaki (Accused No. 1), Mr. Qurai (Accused No. 3), Mr. Sugu (Accused No. 4) and Mr. Qaraniqio (Accused No. 5) were serving prison sentences at Naboro Prison. After 8pm on the same day, all the above accuseds scaled the Naboro Prison fences, and escaped to the main road. Mr. Prasad (Accused No. 2) picked the accuseds from the road in his vehicle, and drove them to Veisari. At a bridge in Veisari, a fiberglass boat was waiting for them. It was well supplied with food, water and clothes. The accuseds got into the boat, and sailed to Cave Island. At Cave Island, they changed into civilian clothes.
   
3. On 19 September 2012, between 1pm to 2pm, the BSP Bank at Samabula was attacked by a group of armed mask robbers. They reversed a vehicle into the Bank's wooden wall, made a hole through the same, and entered the Bank armed with cane knives. They ransacked part of the Bank and stole $70,000 in Fijian and foreign currencies. Mr. Usumaki (Accused No. 1) was identified at the crime scene, at the material time, as part of the men who robbed the Bank. Mr Prasad (Accused No. 2) admitted to police that he was the get-away driver for the robbers at the material time. Both Mr. Usumaki and Mr. Prasad, were found guilty and convicted of "aggravated robbery" against the Bank.
   
4. Mr. Usumaki later met Mr. Qurai (Accused No. 3), Mr. Sugu (Accused No. 4) and Mr. Qaraniqio (Accused No. 5) at Cave Island. He gave some money to them, as itemized in count no. 2, 3 and 4. Mr. Prasad met Mr. Dutt (Accused No. 6) soon after the robbery on 19 September 2012, and drank grog with him. They later went to the night club. Mr Prasad gave some money to Mr. Dutt, which was later discovered in his possession and in his house, as described in count no. 5. Mr. Qurai, Mr. Sugu, Mr. Qaraniqio and Mr. Dutt were found guilty and convicted of "receiving stolen property" from the bank robbery.
   
5. Count No. 1, which is "aggravated robbery", contrary to section 311 (1)(b) of the Crimes Decree 2009, is viewed seriously by the law makers of this country. It carries a maximum penalty of 20 years imprisonment. In Paula Tora v The State, Criminal Appeal No. 0063 of 2011, the Fiji Court of Appeal, on 27 February 2015, accepted the tariff for "aggravated robbery" to be a sentence between 10 to 16 years imprisonment. The Court of Appeal was following the tariff set by the Supreme Court of Fiji in Nawalu v The State [2013] FJSC 11 (see paragraph 17 of Paula Tora v The State (supra).
   

6. Count No. 2, 3, 4 and 5, which is "receiving stolen property", contrary to section 306(1) of the Crimes Decree 2009, is also viewed seriously by the law makers of this country. It carries a maximum sentence of 10 years imprisonment. For a similar offence in the repealed Penal Code, I said the following in State v Josua Raitamata, Criminal Case No. HAC 012A of 2010S: "...The offence of "receiving stolen property", is also a serious offence and carries a maximum penalty of 14 years imprisonment. (Section 313(1)(a) of the Penal Code). The tariff for this offence appears to be a sentence between 12 months to 4 years imprisonment: Tukai Taura v State [2003] HAA 103 and 104 of 2002; Ilaitia Tuwere Turaga v The State [2002] HAA 082/02S; Jesoni Tabakau v State [2003] HAA 19/03S and R v Webbe [2002] 1 Cr. App. R. 22. The sentence will depend on the aggravating and mitigating factors..." The above tariff is also applicable to "receiving stolen property" under section 306 (1) of the Crimes Decree 2009.

7. The aggravating factors for the accuseds were as follows:

(A) Josua Usumaki (Accused No. 1); Solomoni Qurai (Accused No. 3); Tevita Sugu (Accused No. 4) and Epeli Qaraniqio (Accused No. 5) – Escaped Prisoners:

(i) On 17 Septemebre 2012, you all escaped from Naboro Prison. You were all serving lawful sentences imposed by the courts in Fiji. By escaping, you each showed an utter disregard to the criminal justice system in Fiji, and an utter disregard to the rule of law;

(ii) From 17 to 21 September 2012, you caused disharmony, fear and uncertainty in the community. You each showed a total disregard to the community's right to live peacefully.

(iii) For you Josaia Usumaki, you showed utter disregard to the safety and well-being of the employees of BSP Bank, when you violently robbed the Bank on 19 September 2012. Most of them are still personally affected by what you did at the time.

(iv) By robbing the Bank, you showed utter disregard to their property rights, and most of the $70,000 stolen had not been recovered.

(v) Mr. Qurai, Mr. Sugu and Mr. Qaraniqio, by receiving stolen money from Mr. Usumaki, you each showed an utter disregard to the BSP Bank property rights.

(B) Kunal Prasad (Accused No. 2) and Deshwar Dutt (Accused No. 6) – Civilians:

(i) Mr. Prasad, by driving the escaping prisoners from Naboro Prison on 17 September 2012 to Veisari, you willingly assisted in the escape prisoners flouting the criminal justice system, and the rule of law;

(ii) Furthermore, by acting as the get-away driver for the BSP Bank robbers on 19 September 2012, you willingly assisted them in committing a very serious crime, and you should not complain when you loose your liberty to pay for your crime;

(iii) For you Mr. Dutt, by receiving the stolen money from the BSP Bank robbery from Mr. Prasad, you showed utter disregard to the BSP Bank property rights.

8. The mitigating factors in this case were as follows:

(i) For Mr. Usumaki (Accused No. 1), Mr. Qurai (Accused No. 3) and Mr. Sugu (Accused No. 4) all escaped prisoners, at the material time, I find no mitigations for each of you;

(ii) As for Mr. Qaraniqio (Accused No. 5), I find only one mitigating factor. At the material time, you were an escaped prisoner. You were released on 17 December 2013, and you have been remanded in custody for 1 year 4 months approximately since then.

(iii) As for Mr. Prasad (Accused No. 2) – you are not a first offender, but this is your first serious offence. In fact, it is your first "aggravated robbery offence". Mr. Prasad, you also have a young family, and supports your elderly parents. You have been remanded in custody for approximately 2 years 7 months. You are remorseful and not well educated.

(iv) As for Mr. Dutt (Accused No. 6), you are not a first offender – you have seven previous convictions in the last 10 years. You have a young family. According to your counsel, you have spent approximately 2 years 6 months in custody. However, I take judicial notice of the fact that you escaped from this case once, and you were at large for a while. I therefore deduct 3 months from the 2 years 6 months, leaving a balance of 2 years 3 months, to be deducted from your final sentence.

9. For Mr. Usumaki (Accused No. 1), I am bound to consider the effect of Part III of the Sentencing and Penalties Decree 2009, as it applied to "habitual offenders". I have carefully perused the accused previous convictions, as supplied by the prosecution. In the last 10 years, he had accumulated five previous convictions on "robbery and robbery with violence" offences. In terms of sections 10 and 11 of the Sentencing and Penalties Decree 2009, Mr. Usumaki is a habitual offender, and I declare him to be so. When sentencing Mr. Usumaki, I am bound to follow the directions imposed by section 12(a) and (b) of the Sentencing and Penalties Decree 2009.
   
10. For Mr. Usumaki (Accused No. 1), on count no. 1, I start with a sentence of 14 years imprisonment, I add 3 years for the aggravating factors, making a total of 17 years imprisonment. This sentence is given to protect the community from the accused. The above sentence is concurrent to any sentence presently served, and he is not eligible for parole until he's served 16 years imprisonment.
    
11. For Mr. Prasad (Accused No. 2), on count no. 1, I start with 14 years imprisonment. I add 2 years for the aggravating factors, making a total of 16 years imprisonment. I deduct 2 years 7 months for time spent in remand, leaving a balance of 13 years 5 months. For the other mitigating factors, I deduct 1 year 5 months, leaving a balance of 12 years imprisonment. You are to serve a non-parole period of 11 years imprisonment.
    
12. For Mr. Qurai (Accused No. 3) and Mr. Sugu (Accused No. 4), on the "receiving stolen property" charge, I start with a sentence of 3 years imprisonment. I add 1 year for the aggravating factors, making a total of 4 years imprisonment. The above sentence is to be consecutive to your present sentence. Those who escape from prison and commit further offences cannot expect a concurrent sentence. A consecutive sentence will be imposed to warn other would-be offenders.
    
13. For Mr. Qaraniqio (Accused No. 5), I start with a sentence of 3 years imprisonment. I add 1 year for the aggravating factors, making a total of 4 years imprisonment. I deduct 1 year 4 months for time already served, while been remanded in custody, leaving a balance of 2 years 8 months. I sentence you to 2 years 8 months for receiving stolen property, and you are not eligible for parole, until you have served 2 years.
    
14. For Mr. Dutt (Accused No. 6), I start with a sentence of 3 years. I add 1 year for the aggravating factors, making a total of 4 years imprisonment. I deduct 2 years 3 months for time already served while remanded in custody, leaving a balance of 1 year 9 months. For the other mitigating factors, I deduct 3 months, leaving a balance of 1 year 6 months, with a non-parole period of 12 months.
    
15. In summary, your sentences are as follows:
    
    • (i) Mr. Usumaki (Accused No. 1) : Count No. 1 : Aggravated Robbery : 17 years imprisonment, with a non-parole period of 16 years imprisonment effective forthwith. The above sentence is concurrent to any present sentence;
      
    • (ii) Mr. Prasad (Accused No. 2) : Count No. 1 : Aggravated Robbery : 12 years imprisonment, with a non-parole period of 11 years imprisonment;
      
    • (iii) Mr. Qurai (Accused No. 3) and Mr. Sugu (Accused No. 4): Count No. 2 and 3. Each of you are sentenced to 4 years imprisonment, this is to be consecutive to your present prison sentence.
      
    • (iv) Mr. Qaraniqio (Accused No. 5): Count No. 4. You are sentence to 2 years 8 months imprisonment, with a non-parole period of 2 years.
      
    • (v) Mr. Dutt (Accused No. 6): Count No. 5 : 1 years 6 months imprisonment, with a non-parole period of 12 months.
      
16. Mr. Josaia Usumaki (Accused No. 1) for committing "aggravated robbery" against the BSP Bank on 19 September 2012 (Count No. 1), I sentence you to 17 years imprisonment, with a non-parole period of 16 years, effective forthwith. The above sentence is concurrent to your present prison sentence.
    
17. Mr. Kunal Prasad (Accused No. 2), for committing "aggravated robbery" against BSP Bank on 19 September 2012 (Count No. 1), I sentence you to 12 years imprisonment, with a non-parole period of 11 years, effective forthwith.
    
18. Mr. Solomoni Qurai (Accused No. 3) and Mr. Tevita Sugu (Accused No. 4), I sentence each of you to 4 years imprisonment, and this sentence is consecutive to your present prison sentence.
    
19. Mr. Epeli Qaraniqio (Accused No. 5), I sentence you to 2 years 8 months imprisonment, with a non-parole period of 2 years, effective forthwith.
    
20. Mr. Deshwar Dutt (Accused No. 6), I sentence you to 1 year 6 months imprisonment, with a non-parole period of 12 months, effective forthwith.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused No. 1 : K. Singh, Barrister & Solicitor, Suva.
Solicitor for Accused No. 2 : E. Koroi, Barrister & Solicitor, Nausori.
Solicitor for Accused No. 3 : TL Lawyers, Barrister & Solicitor, Suva.
Solicitor for Accused No. 4 : TL Lawyers, Barrister & Solicitor, Suva.
Solicitor for Accused No. 5 : Accused In Person
Solicitor for Accused No. 6 : S. Kumar, Barrister & Solicitor, Nausori.