State v Nadavulevu - Sentence [2015] FJHC 651; HAC046.2015S (10 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 046 OF 2015S

STATE

vs

1. ILAITIA NADAVULEVU
2. MATAIASI MOCEILEVUKA
3. IRAMI CEINATURAGA
   

Counsels : Mr. D. Kumar for State
Accused No. 1 in Person
Accused No. 2 in Person
Accused No. 3 in Person
Hearings : 4 and 25 May, 2015
Sentence : 10 September, 2015

SENTENCE

1. On 20 April 2015, your right to counsel was put to each of you. You each waived your right to counsel and you each said that you would represent yourselves.
   
2. On 4 May 2015, the following information was put to each of you, and you each pleaded guilty to the same:
   

COUNT1

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311[1][a] of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ILAITIA NADAVULEVU, MATAIASI MOCEILEVUKA and IRAMI CEINATURAGA on the 7th day of January, 2015 at Suva, in the Central Division, committed theft of cash of $120, assorted jewellery valued at about $4820, assorted electronic items valued at about $5400, a pair Nike shoes valued at about $200, assorted perfumes valued at about $400 assorted clothes valued at $300, and KIA OPTIMA motor vehicle registration number FX 665 valued at $40,000 all to the total value of $51,240, the property of KARUN GANDHI and immediately before committing theft used force on KARUN GANDHI with intent to commit theft.

COUNT 2

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311[1][a] of the Crimes Decree 44 of 2009.

Particulars of Offence

ILAITIA NADAVULEVU, MATAIASI MOCEILEVUKA and IRAMI CEINATURAGA on the 7th day of January, 2015 at Suva in the Central Division, committed theft of assorted gold jewellery valued $8409, 1 Samsung mobile phone valued at $309, assorted perfumes valued at $800, 2 wrist watch valued at $1450, 2 pair canvas shoes valued at $300 all to the total value of $11,268 the property of MAMTA GANDHI and immediately before committing theft used force on MAMTA GANDHI with intent to commit theft.

COUNT 3

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311[1][a] of the Crimes Decree 44 of 2009.

Particulars of Offence

ILAITIA NADAVULEVU, MATAIASI MOCEILEVUKA and IRAMI CEINATURAGA on the 7th day of January, 2015 at Suva in the Central Division, committed theft of assorted electronic items valued at $5700, 2 pair shoes valued at $250, after shave valued at $100 and 1 GB flash drive valued at $16, all to the total value of $6066, the property of JAIMESH GANDHI and immediately before committing theft used force on JAIMESH GANDHI with intent to commit theft.

3. On 25 May 2015, the prosecution read the following summary of facts:
   

COUNT 1

"...1. At about 2am on 7 January 2015, Karun Gandhi, 51 years, a BSP employee was asleep at his home with his wife and son when he was awoken by a noise in the house.

2. He went to the sitting room where he saw the accused persons and two others with faces covered. The men were armed with a pinch bar, sticks and stones. The complainant's wife Mamta Gandhi, 45 years, domestic duties and son Jaimesh Gandhi, 21 years, student, were also present in the house.

3. The accused persons threatened the complainants not to make noise or they will be hurt.

4. They ransacked the bedroom of Karun Gandhi and stole $120 cash, assorted jewellery including 2 gold rings with diamond stone, silver ring, gold chain with locket valued at $4820, numerous electronic items including I-Pad, I-phone, HP laptop, a pair Nike brand shoes, valued at $200, 2 bottles of perfumed valued at $400, clothes valued at $200 and KIA optima brand motor vehicle registration number FX 665 valued at $40,000 all to the total value of $51,240 the property of KARUN GANDHI.

COUNT 2

5. The accused persons also stole assorted gold jewellery valued at $8409, 1 Samsung brand mobile phone valued at $309, perfumes valued at $800, wrist watches valued at $1450, 2 pair canvas shoes valued at $300, all to the total value of $11,268, the property of MAMTA GANDHI.

COUNT 3

6. The accused persons also stole assorted electronic items including Apple Mac Book Laptop valued at $2500, a Sony touch screen mobile phone valued at $800, 1 Blackberry black colour valued at $1000, 1 Nokia phone valued at $1000, 2 pair shoes valued at $250, aftershave valued at $100, 1 GB flash drive valued at $16, all to the total value of $6066, the property of JAIMESH GANDHI.

7. A report was lodged at the Samabula Police Station on the same day.

IDENTIFICATION OF RECOVERED ITEMS

8. On 7, 8, 9 and 10 January 2015, at Samabula Police Station, Karun Gandhi identified recovered items including 1 mobile phone as his wife's, and a Black mobile phone and a Nokia flip phone and bank cards and a gold chain with locket as his property.

9. On 9 and 11 January 2015, Mamta Gandhi, at Samabula Police Station positively identified numerous bottles of perfumes, a bag, 4 wrist watches, 3 gold bangles, earrings, necklaces and bracelets as her property.

10. On 8 January 2015, at Samabula Police Station, Jaimesh Gandhi identified 3 pairs of shoes, assorted ID cards, a ring and assorted clothes as his property.

ARREST AND CAUTION INTERVIEW

11. Upon investigations, the accused persons were arrested. The first and second accused persons, Ilaitia Nadavulevu and Mataiasi Moceilevuka were interviewed under caution on 8 January 2015. The third accused Irami Ceinaturaga was caution interviewed on 11 January 2015.

12. All accused persons made full confessions to the offence and assisted during scene reconstruction and recovery.

13. Under caution, all accused persons admitted that the aggravated robbery was planned. A taxi was hired by the 3 accused. They were dropped near the complainant's house. The accused persons had their faces covered and were armed with a bolt cutter, pinch bar, empty beer bottle and sticks.

14. They forcefully entered the complainant's house by levering the back door of the complainant's house and stole numerous items from the house.

15. After robbing the complainants, the accused persons drove away in the complainant's vehicle KIA Optima which was abandoned at Nasinu and later recovered.

16. Items listed in the search lists were recovered from the accused persons and others. The search lists are annexed as annexure PE1.

17. Total value of property recovered were $44,200..."

4. The court then checked with each of you on whether or not you each agreed to the elements of "aggravated robbery" as alleged in count no. 1, 2 and 3. You each admitted the prosecution's summary of facts. You also each admitted that you committed robbery against each of the complainants in counts no. 1, 2 and 3 in company with each other. As a result of the above, the court found each of you guilty as charged, and convicted each of you on counts no. 1, 2 and 3.
   
5. "Aggravated Robbery" is a serious offence, and it carries a maximum penalty of 20 years imprisonment (section 311 (1) of the Crimes Decree 2009). The tariff for a spate of robberies is a sentence between 10 to 16 years imprisonment: Nawalu v State, Criminal Appeal Case No. CAV 0012 of 2012, Supreme Court of Fiji. The tariff for a single case of robbery with violence is 8 to 16 years imprisonment: Wallace Wise v The State, Criminal Appeal Case No. CAV 0004 of 2015, Supreme Court of Fiji. The actual sentence will depend on the aggravating and mitigating factors.
   
6. In this case, the aggravating factors were as follows:
   
   • (i) Home Invasion Offence: This aggravated robbery was committed against a family (ie. father, wife and son) while they were sleeping in their house at Princes Street, Tamavua at 2am in the morning on 7 January 2015. An attack on a family while resting in their house is always a serious matter and will always call for a higher sentence, as a deterrence to others. It is the duty of the court to make clear to offenders that a heavy prison sentence will be given to home invaders, as a warning to others.
     
   • (ii) This offending was carried at the complainant's home while they were asleep at night.
     
   • (iii) The offendings were carried out with premeditation and planning.
     
   • (iv) A pinch bar, a bolt cutter and empty beer bottles were used as weapons in this offending.
     
   • (v) The victims were verbally threatened and their privacy were seriously compromised.
     
7. The mitigating factors were as follows:
   
   • (i) Although you pleaded guilty to the offences approximately 3 months after first call in the High Court, you nevertheless saved the court's time's;
     
   • (ii) You each have been remanded in custody since 12 January 2015, that is, approximately 8 months ago;
     
   • (iii) As for Accused No. 1, at the age of 23 years, this is your first offence. For Accused No. 2, this is your first offence at the age of 18 years;
     
   • (iv) Out of a total of $68,574 worth of properties stolen, $44,200 were recovered, leaving a balance of $24,374 worth of properties unrecovered.
     
8. On count no. 1, I start with a sentence of 14 years imprisonment. I add 5 years for the aggravating factors, making a total of 19 years imprisonment. For the guilty pleas, I deduct 4 years from the 19 years imprisonment, leaving a balance of 15 years imprisonment. For being remanded in custody for 8 months, I deduct 8 months from the 15 years, leaving a balance of 14 years 4 months imprisonment. For the recovery of some properties, I deduct another 4 months, leaving a balance of 14 years imprisonment. For accused no. 1 and 2 been first offenders, I deduct another 2 years, leaving a balance of 12 years imprisonment. For accused no. 1 and 2, your sentence are 12 years imprisonment each, while accused no. 3, your sentence is 14 years imprisonment.
   
9. I repeat the above process and sentence for count no. 2 and 3.
   
10. The summary of your sentences are as follows:
    

(i) Count No. 1:	Aggravated Robbery:	Accused No. 1:	12 years imprisonment
		Accused No. 2:	12 years imprisonment
		Accused No. 3:	14 years imprisonment.
(ii) Count No. 2:	Aggravated Robbery:	Accused No. 1:	12 years imprisonment
		Accused No. 2:	12 years imprisonment
		Accused No. 3:	14 years imprisonment.
(iii) Count No. 3:	Aggravated Robbery:	Accused No. 1:	12 years imprisonment
		Accused No. 2:	12 years imprisonment
		Accused No. 3:	14 years imprisonment.

11. Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other; making a final sentence of 12 years imprisonment for Accused No. 1 and 2; and a final sentence of 14 years imprisonment for Accused No. 3.
    
12. Mr. Ilaitia Nadavulevu and Mr. Mataiasi Moceilevuka, for committing aggravated robbery against the Gandhi family at Tamavua on 7 January 2015, I sentence each of you to 12 years imprisonment each, with a non-parole period of 11 years imprisonment, effective forthwith.
    
13. As for you Mr. Irami Ceinaturaga, for committing a similar offence against the Gandhi family on the same day at Tamavua, I sentence you to 14 years imprisonment, with a non-parole period of 13 years, effective forthwith.
    
14. The above sentences are to reflect what the Supreme Court said in Wallace Wise v State, Criminal Appeal Case CAV 0004 of 2015, when it said on 24 April 2015 the following, "...It is our duty to make clear these types of offences will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders..."
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for Accused No. 1 : In Person

Solicitor for Accused No. 2 : In Person

Solicitor for Accused No. 3 : In Person