State v Ketewai - Sentence [2019] FJHC 468; HAC210.2018 (21 May 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 210 OF 2018

STATE

-v-

1. KEPERIELI KETEWAI

2. JOSAIA WARODO VATUNICAOKO

3. LUKE TAVAIALU

Counsel: Ms. L. Lodhia with Mr. Z. Zunaid for Prosecution

Mr. L. Ratidara with Mr. N Chand for 1^st Accused

Mr. R. Goundar for 3^rd accused

Date of Judgment: 08 April 2019

Date of Sentence: 21 May 2019

SENTENCE

1. Keperieli Ketewai and Luke Tavialu, you were jointly charged with the 2^nd accused with Aggravated Robbery contrary to section 311(1)(a) of the Crimes Act 2009. The information reads as follows:

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1) (a) of the Crimes Act 2009.

Particulars of Offence

KEPERIELI KETEWAI, JOSAIA WARODO VATUNICOKO & LUKE TAVAIALU on the 4th day of April 2018 at Vunisea, Kadavu, in the Southern Division in the company of each other robbed UTTAM KUMAR of 1X green bag containing $50 worth of coins, 1 green bag containing $100 worth of coins, $500 cash, 1x Samsung band J5 mobile phone valued at $ 500, 1x return boat ticket valued at $ 350, Hawkers License valued at $ 30; all to the total value of $ 1530, the properties of UTTAM KUMAR.

2. The second accused Josaia Warodo pleaded guilty to the charge and was sentenced by this Court. You maintained the not guilty plea hence the court proceeded to trial. After a full defended trial, both of you were found guilty and convicted as charged. You now come before this court for sentence.
   
3. The complainant in this matter is 38 years old businessman. On 21^st March 2018, the complainant went to Kadavu on a business trip to sell second hand items at the Vunisea market. The complainant took all the sale items in his mini-van and also used his van to sleep at nights during his stay in Kadavu.
   
4. On 3^rd of April 2018, at about 10pm, after closing business at the Vunisea market, the complainant went to his vehicle which was parked at the market roundabout. At about 1.30am, while he was sleeping on the driver’s seat inside his van, Keperieli you knocked on his glass window asking for time. The complainant then opened his van’s door and this is when you held him with one hand and tried to pull him out of his van. The complainant resisted and was struggling to hold onto the steering wheel.
   
5. Luke, you then approached the van and assisted Keperieli to pull the complainant out of the van. Keperieli, you punched the complainant on his nose, chin and back of his head. Both of you then dragged the complainant about seven metres away from his vehicle. While Keperieli was asking the complainant about the money, Luke went back to complainant’s vehicle to check for money.
   
6. The complainant felt blood coming out of his nose. When he felt that he was in danger, he told you that the money was in his shirt pocket which was kept inside his vehicle. One of you then dragged the complainant back to his vehicle and took away his money and his belongings. When you got occupied talking to each other, the complainant managed to lock his vehicle and run to the Kadavu Police Station to report the matter. All of you then ran away and thereafter shared the money.
   

7. The following items were stolen from the complainant:

• 1 × green bag containing $50 worth of coins;
• 1× green bag containing $100 worth of coins;
• $500 cash;
• 1 × Samsung brand J5 mobile phone valued at $500;
• 1 × return boat ticket valued at $350 and
• 1 × hawker’s license valued at $30; all to the total value of $1,530.
  

8. The complainant was medically examined on 5^th of April 2018 at Vunisea Rural Hospital. The medical report has noted that the complainant has sustained tenderness, scratches, bruises and abrasions on his face, scalp, elbow and foot. The report also states that the complainant was in a state of distress following the incident.
   
9. Aggravated Robbery is punishable by 20 years’ imprisonment.
   
10. The tariff depends on the nature and circumstances of the robbery. The tariffs are as follows:
    

Street mugging: 18 months to 5 years’ imprisonment (Raqauqau v State [2008] FJCA 34;AAU0100.2007 (4 August 2008).

Home invasion: 8 – 16 years’ imprisonment (Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015).

Spate of robberies: 10 -16 years’ imprisonment (Nawalu v State [2013C 11; CAV0012.12 (28 August 2013)

11. In assessing thective seriousness of your offending, I looked at culpabilitbility of your offending and the harm caused to the complainant. In selecting the starting point, the court must strike a delicate balance between the seriousness of the offence as reflected in the maximum sentence available under the law and the seriousness of the actual acts of the person who is to be sentenced.
    
12. Keperieli, you are the mastermind of this robbery. You planned this robbery and carried out your plan with two others. You assaulted the complainant brutally under influence of liquor. Your culpability level is high compared to that of Luke Tavialu and Josaia Warado. I pick a starting point of 7 years’ imprisonment as the starting point.
    
13. Luke, you assisted Keperieli to pull the complainant out of his vehicle and assisted wholeheartedly to rob him. The starting point I would select for you is 6 years.
    
14. In Wise (supra), Gates CJ (as he then was) at p [26] enunciated the following factors that would enhanced the sentence:
    

(i) offence committed during a home invasion.

(ii) in the middle of the night when victims might be at home asleep.

(iii) carried out with premeditation, or some planning.

(iv) committed with frightening circumstances, such as the smashing of windows, damage to the house or property, or the robbers being masked.

(v) the weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way.

(vi) injuries were caused which required hospital treatment, stitching and the like, or which come close to being serious as here where the knife entered the skin very close to the eye.

(vii) the victims frightened were elderly or vulnerable persons such as small children.

15. Both of you share the following aggravating features on an equal footing. You robbed the complainant when he was sleeping in his van. At the material time, the van was used as complainant’s temporary dwelling house. The complainant was attacked at night. The attack was premeditated. You were drunk and ruthless. The complainant was dragged out of his vehicle and physically beaten to a point where he feared for his life, forcing him to disclose the location where he kept day’s earnings. The complainant received hospital treatment. Both of you were police officers and the guardians of rule of law. You committed this offence when you were supposed to prevent crimes and not commit them. You breached the trust the people had on you as police officers. These factors aggravated your offending. I add 3 years for the aggravating factors to the above mentioned starting points in respect of each of you.
    
16. Your counsel have filed separate mitigating submissions and begged for lenient sentences. I have considered the mitigation submissions filed by your counsel.
    
17. Keperieli, you are 26 years of age and single. You have been suspended from Fiji Police Force when you were charged for this offence. You are a first offender. Your Counsel has submitted that you are remorseful of your actions. I concede that you have expressed your remorse at the caution interview and the charge, but you have maintained the not guilty plea in court. I doubt if you have been genuinely remorseful. However, you will be given a discount for your clean record and youth. You had been in remand for two weeks and the remand period will be separately discounted in coming to your final sentence. I deduct your sentence by 2 years for mitigation and remand period to arrive at a sentence of 8 years’ imprisonment. Having considered your rehabilitation potential as a young and first offender, I fix a non- parole period of 5 years.
    
18. Luke, you are 27 years of age. You were suspended from Fiji Police Force when you were charged for this offence. You are a first offender. Your Counsel has submitted that you are remorseful of your actions. However, you have maintained the not guilty plea in court and have not shown a genuine remorse. You will be given a discount for your clean record and youth. You had been in remand for 2 weeks. The remand period will be separately discounted. For the mitigating features and the remand period, I deduct 2 years to arrive at a sentence of 7 years’ imprisonment. Having considered your rehabilitation potential as a young and first offender, I fix a non- parole period of 4 years.
    
19. The offence you committed whilst being in the Fiji Police Force should be denounced and adequately punished. The courts have a duty to deter this kind of anti-social behaviour using violence on innocent members of the public and to safeguard their propriety rights. Potential offenders should be sent a clear message. The primary purposes of this punishment are deterrence and denunciation.
    
20. Summary
    

Keperieli Ketewai - 8 years‘ imprisonment with a non-parole perion of 5 years.

Luke Tavaialu - 7 years’ imprisonment with a non-parole period of 4 years.

21. 30 days to appeal to the Court of Appeal.
    

Aruna Aluthge

Judge

AT Suva

On 21 May, 2019

Counsel: Office of the Director of Public Prosecution for Prosecution

Office of the Legal Aid Commission for 1^st Accused

Ravinesh Goundar Lawyers for 3^rd Accused