State v Tagi - Sentence [2023] FJHC 502; HAC237.2022 (28 July 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL DIVISION

Criminal Case No. HAC 237 of 2022

STATE

vs.

1. Eliki Tagi
2. Josefa Wainiu
3. Bharti Archana

Counsels: Ms. Kantharia - for Prosecution
Mr. Varinava T - for 1^st Accused
Ms. Daunivesi S - for 2^nd Accused
Ms. Prakash A - for 3^rd Accused

SENTENCE

1. Eliki Tagi, Josefa Wainiu and Bharti Archana you were charged in this Court by the Prosecution for one count of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Act 2009, as follows;
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311(1) (a) of the Crimes Act of 2009.

Particulars of Offence

ELIKI TAGI, JOSEFA WAINIU, BHARTI ARCHANA, on the 7^th day of July 2021 at Tokotoko back road, Navua, in the Central Division, in the company of each other, stole $10,000 FJD, $4,000 CAD, 1 x Fijian passport, 1 x Canadian passport, 1 x gold wrist watch, 1 x gold chain, 1 x gold ring, 1 x Samsung S9 mobile phone, 1 x Samsung s10 mobile phone, 1 x HP Laptop, 1 x gross BH10 cigarettes, assorted clothes and assorted chocolates, the properties of MER SINGH and immediately before stealing the said properties, used force on MER SINGH and SHANIYA AVENTIKA LAL.

2. You pleaded guilty to the above count stipulated in the information filed by the Prosecution on 31/01/2023. Thereafter, the 1^st and the 2^nd accused agreed to the Summary of facts when they were read in open Court on 01/05/ 2023 and the third accused agreed to the Summary of facts with minor changes to the original version on 18/05/2023. In considering the original version and the amended version of the summary of facts agreed by the three of you, this Court was convinced that all the required elements for the offence you were charged with have been established. Therefore, the three of you were convicted for the offence you were charge with. Today this matter is coming up for the imposition of the sentence.
   
3. In comprehending with the gravity of the offence you have committed, I am mindful that the maximum sentence prescribed by law for Aggravated Robbery is 20 years’ imprisonment.
   
4. However, the tariff depends on the nature and circumstances of the robbery at issue. In the case of The State v EPARAMA TAWAKE^[1], the Supreme Court of Fiji has updated the applicable tariff for Aggravated Robbery, by the below pronouncement:
   

“Once the court has identified the level of harm suffered by the victim, the court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they pleaded guilty or not guilt and irrespective of previous convictions.”

	ROBBERY (Offender alone and without a weapon)	AGGRAVATED ROBBERY (Offender either with another or with a weapon)	AGGRAVATED ROBBERY (Offender with another and with a weapon)
HIGH	Starting point: 5years imprisonment Sentencing Range: 3 – 7 years	Starting Point: 7 years imprisonment Sentencing Range: 5 – 9 years	Starting Point: 9 years imprisonment Sentencing Range: 6 – 12 years imprisonment
MEDIUM	Starting point: 3 years imprisonment Sentencing Range: 1 – 5 years	Starting Point: 5 years imprisonment Sentencing Range: 3 – 7 years imprisonment	Starting point: 7 years imprisonment Sentencing Range: 5 – 9 years imprisonment
LOW	Starting Point: 18 months imprisonment Sentencing Range: 6 months – 3 years.	Starting Point: 3 years imprisonment Sentencing Range: 1 – 5 years imprisonment	Starting point: 5 years imprisonment. Sentencing Range: 3 – 7 years imprisonment.

5. In this matter, this robbery with specific objectives had been committed by the three of you on a 61-year-old Fijian, who was now living in Canada during his visit to his motherland. Therefore, in assessing the objective seriousness of offending in this matter, I considered the maximum sentence prescribed for the offence, the degree of culpability, the manner in which you committed the offence and the harm caused to the complainant. I gave due cognizance to the sentencing guidelines stipulated in Section 4 of the Sentencing and Penalties Act 2009. Considering the circumstances of this case in-line with the pronouncement of the Supreme Court of Fiji as highlighted above, Mr. ELIKI TAGI, I start your sentence with a starting point of 9 years imprisonment, i.e. in the high-range of the applicable tariff for committing Aggravated Robbery with others, where a weapon was used. Mr. JOSEFA WAINIU and Ms. BHARTI ARCHANA I start your sentence with a starting point of 7 years imprisonment, i.e. in the high-range of the applicable tariff for committing Aggravated Robbery with others.
   
6. On promulgating the above-mentioned table for tariff for the offence of Robbery in the case of The State v EPARAMA TAWAKE^[2], the Supreme Court has also ventured to identify aggravating and mitigating factors, as below:

“Having identified the initial starting point for sentence, the court must then decide where within the sentencing range the sentence should be, adjusting the starting point upwards for aggravating factors and downward for mitigating ones. What follows is not an exhaustive list of aggravating factors, but these may be common ones:

• Significant planning
• Prolonged nature of the robbery
• Offence committed in darkness
• Particularly high value of the goods or sums targeted
• Victim is chosen because of their vulnerability (for example age, infirmity or disability) or the victim is perceived to be vulnerable
• Offender taking a leading role in the offence where it is committed with others
• Deadly nature of the weapon used where the offender has a weapon
• Restraint, detention or additional degradation of the victim, which is greater than is necessary to succeed in the robbery.
• Any steps taken by the offender to prevent the victim from reporting the robbery or assisting in any prosecution.

Again, what follows is not an exhaustive list of mitigating factors, but these may be common ones:

• No or only minimal force was used
• The offence was committed on the spur of the moment with little or no planning
• The offender committed or participated in the offence reluctantly as a result of coercion or intimidation (not amounting to duress) or as a result of peer pressure
• No relevant previous conviction
• Genuine remorse evidenced, for example by voluntary reparation of to the victim”
  

7. In this matter, three of you have committed this offence with immaculate pre-planning with the intention of robbing Mer Singh and causing physical harm to him. In this process, ELIKI TAGI and JOSEFA WAINIU have reached the residence of Mer Singh with the help of BHARTI ARCHANA and entered the residence of Mer Singh as trespassers and in the process of demanding Mer Singh to give money, ELIKI TAGI has assaulted him with a pinch-bar until he fell on the couch unconscious with injuries to the head. Thereafter, Mer Singh had been dragged and locked in the washroom. On the part of JOSEFA WAINIU, in the process of committing this offence, he has physically restrained Shaniya Lal, where her hands were tied with a charger cable, and she was put inside a wardrobe. This entire episode had taken place to execute a well-crafted master plan of BHARTI ARCHANA, as noticeable from the caution interviews of three of you. In considering this significant planning, I increase your sentence by one more year,
   
8. In mitigation, in relation to ELIKI TAGI and JOSEFA WAINIU your counsel has informed Court that at the time of commission of this offence you were 26 years and 23 years of age, respectively. In consideration of your age, I notice that your rehabilitation chances are high. Therefore, I intend to consider your rehabilitation potential, which should be balanced with deterrence and community protection. For this end, I reduce the sentence of both of you by one (01) year.
   
9. In mitigation for BHARTI ARCHANA, your counsel informs this Court that you are the primary caregiver for your 4 months old child. In recognizing the need of the presence of the mother for the growth of a very young child, I reduce your sentence by one (01) year.
   
10. Further, the counsel of all 3 accused have informed this Court that you have entered an early guilty plea and that you regret your action on the day in question. Still further, Court recognizes that by pleading guilty to the charge you have saved court’s time and resources at a very early stage of the Court proceedings. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of one third in your sentence.
    
11. The Prosecution brings to the attention of this Court that the first accused and the second accused have been in custody since for this matter for 59 days and the third accused had been in custody for this matter for 52 days, which periods should be deducted from your sentence separately.
    
12. Please be mindful that the crime three of you had committed in this matter had the capacity in causing a deplorable impact on the reputation of our country as a touristic destination. In noticing matters of this nature, where you had robbed and assaulted a resident of Canada with Fijian origin visiting Fiji, anybody contemplating a holiday in Fiji would be more speculative of the decision. Therefore, considering the gravity of the offence you had committed, I am not in a position to grant any other reductions in your sentence.
    
13. Taking all these factors into consideration, ELIKI TAGI, I impose on you an imprisonment of 5 years and 10 months with an applicable non-parole period of 5 years and 4 months under Section 18 (1) of the Sentencing and Penalties Act of 2009. JOSEFA WAINIU, I impose on you an imprisonment of 4 years and 6 months with an applicable non-parole period of 4 years under Section 18 (1) of the Sentencing and Penalties Act of 2009. BHARTI ARCHANA, I impose on you an imprisonment of 4 years and 6 months with an applicable non-parole period of 4 years under Section 18 (1) of the Sentencing and Penalties Act of 2009.
    
14. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    

.............................................
Hon. Justice Dr. T. Kumarage

At Suva
This 28^th day of July 2023

---

^[1] CAV 0025 of 2019 [Court of Appeal No. AAU 0013 of 2017]
^[2] Ibid