State v Vadei - Sentence [2020] FJHC 796; HAC447.2018S (28 September 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 447 OF 2018S

STATE
Vs

SEKOVE VADEI

Counsels : Mr. N. Sharma for State
Mr. J. Korotini for Accused
Hearings : 22, 23 and 24 September 2020.
Summing Up : 25 September, 2020.
Judgment : 25 September, 2020.
Sentence : 28 September, 2020.

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SENTENCE
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1. In a judgment delivered on Friday, 25 September 2020, the court found you guilty and convicted you on the following information.
   

“Statement of Offence

AGGRAVATED ROBBERY: Contrary to Sections 46 and 311 (1) (a) f the Crimes Act 2009.

Particulars of Offence

SEKOVE VADEI, in the company of others, on 16 November 2018, at Lami in the Central Division, stole 02 Samsung phones, 01 black IPhone, 01 Vodafone modem, 01 pouch of jewelry containing 02 pairs of Swarovski earrings, 01 pair pearl earrings, 01 Gaine and Stone ring, 01 yellow stone ring, 01 diamond and gold pendent, 01 Westpac Debit card, 01 wallet containing $200.00 cash, 01 pair of sunglasses, 01 red key holder containing 04 keys and 01 car alarm key, and 01 Jacks of Fiji Reward Card from MARYANN ELENOA MAAFU-MOSS and immediately before stealing from MARYANN ELENOA MAAFU-MOSS, used force on her.”

2. The brief facts of the case were as follows. The complainant (PW1) was a 43 year old business woman from Nadi. On 16 November 2018, at about 2.30 am, early Friday morning, she was asleep alone in an apartment at 69 Marine Drive, Lami. She woke to visit the bathroom, but suddenly was attacked by two males in her bedroom. She could not identify their faces. One of the men jumped on her and shoved her cardigan down her throat to prevent her raising the alarm. The man demanded money. She nodded, and at the same time had difficulty breathing.
   
3. The two men ransacked her apartment and stole her properties as itemized in the charge. The complainant’s friend (PW2), in a nearby apartment, came to her rescue when he heard her scream. PW2 raised the alarm, and two policemen (PW3 and PW4), who were on foot patrol in Lami Town, responded. The thieves fled the crime scene, but the accused was caught by PW3 and PW4 at Tikaram Park after 3 am. The policemen later escorted the accused to Lami Police Station.
   
4. At the station, he was searched. He was also searched at Tikaram’s Park. The complainant’s bunch of keys, Westpac Debit Card, Jack’s card and her pouch and sunglass were found on the accused. He was caution interviewed by police at Lami Police Station on 16 and 17 November 2018. He admitted he was part of the group that violently robbed the complainant on 16 November 2018 after 2.30 am. He had been tried and convicted as charged in the High Court at Suva.
   
5. “Aggravated Robbery”, as a criminal offence, is viewed seriously by the law-makers of this country, and it carried a maximum sentence of 20 years imprisonment. For a spate of robberies, the tariff is a sentence between 10 to 16 years imprisonment: see Livai Nawalu v The State, Criminal Appeal No. CAV 0012 of 2012, Supreme Court of Fiji. With a single case of aggravated robbery, the tariff is now a sentence between 8 to 16 years imprisonment: see Wallace Wise v The State, Criminal Appeal No. CAV 0004 of 2015, Supreme Court of Fiji. The actual sentence will depend on the aggravating and mitigating factors.
   
6. In Wallace Wise v The State (supra), the Supreme Court of Fiji had this to say on sentencing:

“[26] Sentences will be enhanced where additional aggravating factors are also present. Examples would be:

(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.

[27] It is our duty to make clear these type 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.”

7. The aggravating factors in this case were as follows:

(i) Home Invasion. A person’s home is a person’s castle, where he or she seeks refuge and safety. For a person to violate a person’s right to safety and security in his or her home or apartment, shows utter disrespect to a citizen’s right. The violator must be taught to respect other people’s right by the passing of a heavy prison sentence. This is even more so, when the complainant was attacked at her apartment when she was asleep at night after 2.30 am in the early morning.
(ii) Offence carried out with premeditation and pre-planning. Obviously the accused and his friends had carried out the offence with premeditation and preplanning. The accused stood outside the apartment as the look-out, while two of his friends broke into the complainant’s bedroom and attacked her. She was a 43 year old woman and bullied by two i-taukei men, who physically assaulted her and threatened her. They later ransacked her apartment and stole her properties. The accused was an important member of the group, although he was acting as the look out. By doing so, he was committed to the group attack on the complainant, and he must not complain when he is punished accordingly.
(iii) Offence was committed in frightening circumstances. The complainant was physically attacked when she was half asleep and she suffered injuries to her face. They shoved her cardigan down her throat to stop her raising the alarm, and nearly killed her as a result, because for a while, she had difficulty breathing. The complainant was vulnerable at the time, because she was sleeping alone.

8. The mitigating factors were as follows:
(i) At the age of 22 years, this is your first offence;

(ii) You had been remanded in custody awaiting trial for approximately 1 year 10 months.

9. I start with a sentence of 9 years imprisonment. I add 5 years for the aggravating factors, making a total sentence of 14 years imprisonment. For time already served while remanded in custody, I deduct 1 year 11 months, leaving a balance of 12 years 1 month imprisonment. For being a first offender at the age of 22 years, I deduct 2 years 1 month, leaving a balance of 10 year imprisonment.
   
10. Mr. Sekove Vadei, for being part of a group of three males who violently robbed the complainant on 16 November 2018, at Lami in the Central Division, of her properties as itemized in the charge, I sentence you to 10 years imprisonment, with a non-parole period of 9 years imprisonment, effective forthwith.
    
11. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.