State v Waqaicece - Sentence [2021] FJHC 399; HAC237.2021 (17 December 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 237 OF 2021

STATE

V

SIMIONE WAQAICECE
ANARE MOILEVU
RUSIATE MAVOA (J)

Counsel: Mr E Samisoni for the State

Mr T Varinava for both Accused and Juvenile

Date of Hearing: 14 December 2021
Date of Sentence: 17 December 2021

SENTENCE

[1] The two adult Accused and the juvenile have pleaded guilty to one count each of aggravated robbery and theft of a motor vehicle. The first Accused, Simione Waqaicece has also pleaded guilty to an additional charge of breach of a suspended sentence.

[2] The facts are that on 15 October 2021, the two Accused and the juvenile boarded a taxi driven by the victim on the pretext of hiring the taxi to take them from Navua to Waikalou. The victim is a 57 year old male. He drove a taxi for a living. The owner of the vehicle is someone else.

[3] Upon reaching Waikalou, the victi told to return. As they were returning, the victim was told to stop by a coconut tree. As . As the victim parked the taxi, the passenger sitting directly behind him grabbed him by the neck and tried to strangle him. The victim was then forcefully removed out of his taxi and punched and kicked by all three attackers until he fell to the ground. The attackers stole the victim’s wrist watch, mobile phone and cash earnings of $90.00. They then fled the scene in the taxi leaving the victim behind.

[4] The taxi was driven by the second Accused, Anare Tagilala. While driving, he lost control of the vehicle and hit a post. The estimated cost of damage done to the taxi was about $3480.00

[5] The two Accused and the juvenile were arrested. They made full admissions to the police. The victim’sle and wand watch were recovered through their cooperation.

[6] The offences of aggravated robbery and theft of motor vehicle are part of the same transaction. Aggravated robbery e principal offence. The ofhe offence is objectively serious because it was committed in a company of another. The offence is punishable by 20 years imprisonment while theft is punishable by 10 years imprisonment.

[7] The tariff for offences of aggravated robbery against public transport providers such as taxi, bus and van drivers is between 4 years and 10 years imprisonment (Usa v State [2020] FJCA 52; AAU81.2016 (15 May 2020), State v Ragici [2012] FJHC 1082; HAC366, 367, 368.2011 (15 May 2012), State v Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010), State v Tamani [2011] FJHC 725; HAC290.2011 (11 November 2011)).

[8] In State v Kotobalavu
mp;& Ors Cr Case No HAC43/1(Ltk), Madigan J said at p 6:

Violent robberies of transport providers (be they taxi, bus or van drivers) are notes that should result in non-custodial sentences, despite tite the youth or good prospects of the perpetrators....

[9] In Vilikesa v State Crlminal Appeal No. HAA 64/04, Gates J said:

Violent and armed robberies of taxi drivers are all too frequent. The taxi industry

serves this country well. It provides a cheap vital link in short and medium haul transport .... The risk of personal harm they take every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver, they will receive a lengthy term of imprisonment.

[10] This is a case of a group attack on a taxi driver. The offence is objectively serious.

[11] The other aggravating factors are that actual physical violence was inflicted on a vulnerable older victim resulting in multiple injuries to his body and that the damage done to the taxi is significant.

[12] The common mitigating factors are that all three Accused have pleaded guilty at the first opportunity, they have cooperated with the police and have saved the court’s time and resources. They say they are remorseful. Both have spent 2 months in custody on remand.

[13] The subjective features of the three Accused are different, and therefore, require different consideration.

The first Acct Accused is 33 years old, not married but has a 4-year old daughter. He has five previous convictions. In 2012 he was convicted of aggravated robbery and sentenced to 4 years imprisonment. In 2018 he was convicted of attempted burglary and sentenced to 18 months imprisonment suspended for 3 years. He reoffended during the operational period of his suspended sentence.

[15] In his case I have power to declare him a habitual offender pursuant to section 11 of the Sentencing and Penalties Act. His previous convictire ofre of a similar nature. He reoffended when his suspended sentence was active. I am satisfied that he constitutes a threat to the community.

[16] F16] For him thecipal purpose of sentence ince is the protection of the community. As the Supreme Court said in Timo v State [2019] FJSC 22; CAV0022.(30 August 2019) at [13]:

<58">A serious repeat offender who is not responding to rehabilitation is a justifiable concern to the normal law-abiding public. Such persons may find the court will insist on him or her being kept incarcerated for a term close to the head sentence. The non-parole order must keep within the limits provided by section 18(4). Such orders must be accompanied by brief reasons stating the purpose of what is in effect a harsher term (per Gates CJ).

[17] Section 12 of the Sentencing and Penalties Act states that the court may impose a sentence longer than that which is proportionate to the gravity of the offence in order to achieve that purpose. I also have pto activate tate the first Accused’s suspended sentence and order him to serve either the full term or part of it in addition to a fine not exceeding 100 ty units (s 28 of the Sentencing and Penalties Act).

[18] The second Accused is 20 years old and single. Before he was remanded, he was employed as a bulk binder at the Shop & Save Supermarket. His young age and previous good character are additional mitigating factors.

[19] Based on the objective seriousness of the charges I use an aggregate term of 5 years imprisonment for the first and second Accused and add 2 years to the sentence for the aggravating factors. I give both Accused the same discount of 22 months for their guilty pleas, cooperation with the police, remorse and saving the court’s time and resources and a reduction of 2 months for their remand period. I give an additionacount ount of 1 year to the second Accused for his young age and previous good character.

[20] On counts one and two, the first Accused is convictedsentenced to an aggregate term of 5 years imprisonment. On . On count three, a fine is not appropriate. The first Accused reoffended right at the end of his operational period of his suspended sentence. It would be unjust to activate the entire period of 18 months imprisonment. I activate 12 months of his suspended sentence, to be served consecutively with the aggregate sentence of 5 years imprisonment imposed on counts one and two. The total sentence of 6 years imprisonment reflects the need to protect the community from the first Accused by ‘warehousing’ him due to his declared status as a habitual offender.

[21] On counts one and two, the second Accused is convicted and sentenced to an aggregate term of 4 years imprisonment.

[22] A different sentencing regime applies to the juvenile. Section 2 of the Juveniles Act,defines juvenile as a person who has not attained the age of 18 years at the time e alloffence.

[23] In State v Vualiku [2i> [2018] FJHC 615; HAC063.2018 (20 July 2018) this Court referred to the guiding principles in paragraphs [2]-[6]:

[2] Consistent with the objectives of the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing R#8217he Juveniles Act providr special measures toes to deal with juveniles within the criminal justice system. It is now well recognized that children who are accused of committing offence not be treated in the same manner as the adults in the crie criminal justice system.

[3] In a landmark decision in&<160;Roper v Simmons [2005] USSC 2017; 543 US 551 (2005), the Supreme Courthef the United States held that it was unconstitutional to impose death penalty for crimes committed by juveniles. In coming to that conclusion the Court referred to a body of sociological and scientific research that juveniles have a lack of maturity and sense of responsibility compared to adults (pp15-16). The studies referred to in the judgment also found that juveniles are more vulnerable to negative influences and outside pressures, including peer pressure and that they have less control, or experience with control, over their own environment. Studies also indicate that juveniles also lack the freedom that adults have, to escape a criminogenic setting.

[4] Similarly, in [2005] UKHL 51 (ly July 2005 2005) the Houe House of Lords observed that juveniles are to be treated differ than the adults in the crie criminal justice system. The Court said at [24]:

In the Court's view, the first of these meant that a juvenile's irresponsible conduct was not as morally reprehensible as that of an adult; the second meant that juveniles had a greater claim to be forgiven for failing to escape the negative influences around them; and the third meant that even the most heinous crime was not necessarily evidence of an irretrievable depraved character.

[5] Article 40 of the Convention on the Rights of the Child states:

States parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

[6] Rule 5 of the Beijing Rules state:

The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.

[24] The Juveniles Act prohibits use of the terms “conviction” and “sentence” in relation to juveniles (s 20). The Act also provides for a range of methods to deal with juvenile offenders (s 32), including restrictions on use of imprisonment (ss 30 and 31). In State v NT [2003] FJHC 339; HA001.2003S (31 July 2003) the Court said that a juvenile has better prospects of rehabilitation than an adult and long terms of imprisonment should therefore be avoided. The mm detention that can can be imposed on a juvenile for aggravated robbery and theft is 2 years (s 30 (3)).

[25] The ile is 17 years of old and a Form 3 student at Lomary Secondary School. He resides at LepanLepanoni Settlement with his family. He is the 6^th sibling out of seven children. He is being raised by his single mother who is employed as a caregiver at a residence in Waikalou. He isrseful for his conductnduct and wishes to continue with his studies.

[26] While I give considerable weight to the subjective features of the juvenile I cannot completely ignore that he committed a violent crime in the company of adults. I havuty to balance the nehe need to rehabilitate the juvenile with the need to keep the public safe from crime involving use of physical violence.

[27] After taking all these matters into account I impose a punishment of an aggregate term of 2 years detention on the juvenile. The juvenile is to serve his detention at the State Juvenile Detention Centre for boys until 3 January 2022. Effective from 3 Jan2022, 022, the remaining term of detention is suspended for 2 years to allow the juvenile to return to school to complete his education.

[28] In summary the sentences and punishmee as follows:

F

First Accused – A total sentence of 6 years imprisonment with a non-parole period of 5 years.

Second Accused – An aggregate sentence of 4 years imprisonment with a non-parole period of 2 years.

Juvenile – An aggregate detention of 2 years that is partially suspended for 2 years effective from 3 January 2022.

. ...........................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for both Accused and Juvenile