State v Dutt - Sentence [2024] FJHC 57; HAC13.2018 (30 January 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 13 OF 2018

STATE

-v-

1. DESHWAR DUTT
2. SAVENACA VUNISA

Counsel: Mr S.Seruvatu for Prosecution
Accused in Person.

Date of Sentence Hearing: 22 January 2024
Date of Sentence: 30 January 2024

SENTENCE

1. After a contested trial, Mr Deshwar Kishore Dutt (1^st Offender) and Mr Savenaca Vunisa (2^nd Offender) were convicted of four counts of Aggravated Robbery. The information on which the Offenders were tried was as follows:
   

FIRST COUNT

Statement of Offence

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

Particulars of Offence

DESHWAR KISHORE DUTT, SAVENACA VUNISA and another between the 29th day of December 2019 and 30th day of December 2017 stole one Alcatel one touch mobile phone valued $49.00 and one torch valued $60.00, properties of BHAGUTY PRASAD, all to the total value of approximately FJD $109.00 and at the time of such theft, the said DESHWAR KISHORE DUTT, SAVENACA VUNISA and another were armed with a kitchen knife, axe and pinch bar and had also applied force on the said BHAGUTY PRASAD.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

DESHWAR KISHORE DUTT, SAVENACA VUNISA and another between the 29th day of December, 2019 and 30th day of December 2017 stole, $10,000 cash in Fijian and US currencies, Samsung J7 brand mobile phone valued $250USD and Samsung one brand mobile phone valued $350USD, 1 Vido brand mobile phone valued $100FJD, 1 Forme brand Mobile phone valued $100FJD and a Toyota Prius motor vehicle registration number JC 367 valued $17,000, properties of JAI REDDY, all to the total value of approximately FJD$28,400.00 and at the time of such theft, the said DESHWAR KISHORE DUTT, SAVENACA VUNISA and another were armed with a kitchen knife, axe and pinch bar and had also applied force on the said JAI REDDY.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

DESHWAR KISHORE DUTT, SAVENACA VUNISA and another between the 29th day of December 2019 and 30th day of December 2019 stole about 50 assorted jewelries and watches valued approximately USD$102,000,$2000 cash in Fijian and US currencies, ELIZABETH ARDEN RED DOOR perfume valued at USD$79.00, the properties of MUNI LAKSHMI REDDY, all to the total value of approximately FJD$206,160.00 and at the time of such theft, the said DESHWAR KISHORE DUTT, SAVENACA VUNISA and another were armed with a kitchen knife, axe and pinch bar and had also applied on the said MUNI LAKSHMI REDDY.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

DESHWAR KISHORE DUTT, SAVENACA VUNISA and another between the 29th day of December 2017 and 30th day of December 2017 stole a gold Samsung J7 brand mobile phone valued $250USD, USD $100 cash, Adidas backpack valued $80USD, OLD SPICE brand deodorant valued $10USD, TOMMY BAHAMA brand body spray valued $20USD and a white mobile phone charger valued at $10USD, the properties of BRANDON REDDY, all to the total value of approximately FJD$940.00 and at the time of such theft, the said DESHWAR KISHORE DUTT, SAVENACA VUNISA and another were armed with a kitchen knife, axe and pinch bar and had also applied force on the said BRANDON REDDY.

2. When the trial was concluded, the 2^nd offender chose not to attend Court. A bench warrant was issued to arrest him, but it could not be executed. Having been satisfied that the 2^nd offender is deliberately absconding, the Court proceeded to judgment where both the offenders were convicted. I now proceed to sentence the 2^nd offender in absentia. Only Mr Deshwar Dutt, who is serving a prison term, filed a written submission in mitigation which was supplemented by his oral submission at the sentencing hearing.
   
3. The circumstances under which the robbery occurred are disturbing. The Reddy family returned to Fiji from the United States to invest their money and was running a supermarket in Namaka. After closing their business for the day, Ms Muni Lakshmi Reddy (Lakshmi), who is the complainant in this case (PW2), returned home at around midnight on 29 December 2017 together with her husband, Jai, and her son Brendan. They were ambushed by three masked robbers who had already gained entry to the house by assaulting the security guard Mr Bhaguty Prasad (PW1). Mr Bhaguty Prasad suffered injuries to his mouth and back after being brutally assaulted by the offenders to an extent where he became unconscious. After assaulting and tying up the security guard, Jai and Brendan, the house was ransacked. Brendan was brutally assaulted in front of his mother and the horrific ordeal left him with a scarred memory where he had to receive counselling. Brendan is now terrified to return to Fiji. Robbers were armed with a sickle and a pinch bar. Lakshmi was threatened with rape and the sickle was used on her neck to get information on money and jewelry.
   
4. The branded suits purchased in the USA, valuable jewellery and cash were among the property stolen from the complainant’s house. The robbers fled the scene in the car stolen from the complainant. Lakshmi identified Deshwar Dutt when he made a surprise comeback to the crime scene unmasked, ostensibly to obtain the correct PINs of the bank cards which they had stolen. Some of the stolen items were recovered by the police and from the possession of the 2^nd offender, Savenaca Vunisa.
   
5. In selecting the sentences that are best suited to the offenders, the courts must have regard to the proportionality principle enshrined in the Constitution and the Sentencing and Penalties Act 2009 (SPA), the maximum penalty prescribed for the offence, the current sentencing practice and the applicable guidelines issued by the courts. Having due regard to the seriousness of the offence and harm caused to the victims, the final sentence should be determined after making due adjustments for the aggravating and the mitigating circumstances.
   
6. According to Section 17 of the Sentencing and Penalties Act 2009, if an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court has the discretion to impose an aggregate sentence of imprisonment in respect of those offences. This is a fit case to impose an aggregate sentence on each offender for all the four counts.
   
7. Property-related offences such as Aggravated Robbery and Burglary are on the rise in Fiji. The courts have emphasised that the increasing prevalence of these offences in our community calls for deterrent punishments. The community must be protected from robbers. This Court must see that the sentences are such as to operate as a powerful deterrent factor to prevent the commission of such offences. The offenders must receive condign punishment to mark society’s outrage and denunciation against such offences.
   
8. The maximum sentence for Aggravated Robbery is 20 years’ imprisonment. It is now settled that offenders of Aggravated Robbery must be sentenced in accordance with the sentencing regime and the tariff set out in Eparama Tawake v State ^[1] (Tawake) by the Supreme Court.
   
9. In Tawake; the Supreme Court identified the starting points and the sentencing ranges for the three categories of “Robbery” as follows;
   

HIGH	ROBBERY (OFFENDER ALONE AND WITHOUT A WEAPON)	AGGRAVATED ROBBERY (OFFENDER EITHER WITH ANOTHER ORWITH A WEAPON	AGGRAVATED (OFFENDER WITH ANOTHER AND WITH A WEAPON
	Starting point:5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point:7 years imprisonment Sentencing range: 5-9 years imprisonment	Starting point: 9 years imprisonment Sentencing range: 6-12 years imprisonment
MEDIUM	Starting point:3 years imprisonment Sentencing range: 1-5 years imprisonment	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 imprisonment	Starting point:3 years imprisonment Sentencing range: 1 - 5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3 - 7 years imprisonment

10. According to the tariff as set out in Tawake the starting point would have to be determined taking into consideration the level of culpability especially the harm both psychological and physical suffered by the victims. Once the level of harm suffered by the victims has been identified, the Court should use the corresponding starting point as set out in the table to reach a sentence within the appropriate sentencing range.
    
11. The culpability levels of both offenders are on the same footing. This Robbery is a premeditated night-time invasion committed with frightening circumstances. The robbers were masked and armed with a pinch bar and a sickle. The level of violence used is high. Brendan was tortured and the lady was threatened with rape at the point of a sickle. The value of property stolen was high and some of the valuables were never recovered. The level of physical harm and mental agony caused to the victims is enormous. All the male victims suffered injuries albeit they were not that serious.
    
12. A starting point of 9 years and a sentencing range of 6–12 years’ imprisonment is reserved by the said Tawake Guidelines for the armed gang robberies committed of this magnitude. I start the sentencing process for the offenders with a starting point of 9 years’ imprisonment for each offender.
    
13. Having perused the Tawake Guidelines, I identified the following aggravating factors for both offenders. There was evidence of significant pre-planning. The robbers were armed and masked in a night-time invasion. All the victims received minor injuries and psychological trauma. The robbery took place for a considerable period. The value of the property stolen was high and not recovered fully. The weapons used were deadly.
    

Application for Habitual Offender

14. The State made an application that the Offenders be declared habitual offenders in terms of Sections 10, 11 and 12 of the Sentencing and Penalties Act (SPA). Section 11(1) of the SPA lays down two prerequisites for an exercise of discretion to declare an offender a habitual offender. The first is that the offender should have been convicted of an offence in the nature prescribed under Section 10. The offence of Aggravated Robbery is covered under that Section. The second is that the sentencing court having regard to the offender’s previous convictions for offences of similar nature must be satisfied that the offender constitutes a threat to the community^[2].
    
15. The State has filed a record of previous convictions (RPC) issued by the Criminal Records Office (CRO) for each Offender. It is surprising to note that the longest prison term Mr Dutt is currently serving is not reflected in these records. It is quite concerning because the Courts often rely on the RPCs produced by the CRO for sentencing purposes.
    
16. Mr. Dutt has 24 previous convictions but most of them are for traffic offences and more than 10 years old. From 2004 to date he has 6 previous convictions of similar nature last one being in 2017 for which he received 15 years’ imprisonment. He has committed this offence having escaped from lawful custody. Mr Vunisa has 9 previous convictions of similar nature. Both offenders have convictions for Escape from Lawful Custody. Having regard to the offenders’ previous convictions for offences of similar nature, Escape from Lawful Custody and the manner in which the present offences were committed, I am satisfied that the offenders constitute a threat to the community. Therefore, the offenders should be declared habitual offenders to protect the community.
    
17. The legal consequences of an offender being declared a habitual offender can be gathered from Sections 12, 13 and 14 of the SPA. Accordingly, the court in determining the length of the sentence must regard the protection of the community as the principal purpose for which the sentence is imposed. To achieve that purpose, the court has a discretion to impose a sentence longer than that which is proportionate to the gravity of the offence.
    
18. However, I am inclined to maintain my view expressed in State v Koroi Junior^[3] where I declined to apply Section 12 of the SPA to impose a disproportionate sentence because such a cause is obnoxious to the proportionality principle (in sentencing) entrenched in Section 11(1) of the Constitution.
    
19. According to Section 13 of the SPA, every term of imprisonment imposed by a court on a person determined to be a habitual offender shall, unless otherwise ordered by the court, be served consecutively on any uncompleted sentences or any other sentence imposed on the offender.
    
20. Mr Dutt urges that in view that he is already serving a sentence of 15 years’ imprisonment his and his family’s future will be ruined if a consecutive sentence is imposed. He further submits that his plan to study law at the USP and to become a ‘top criminal lawyer’ will also be ruined. He boasts of his achievements in successfully defending three of his own criminal cases and winning two appeals without being a lawyer by profession.
    
21. I concede that Mr Dutt is smart not only in criminal enterprises but also conducting his defence in court. As I have stated in my judgment, he demonstrated his ability to correctly identify the legal issues involved in the trial and cross-examine the Prosecution witnesses to the point. I wish I could have helped him to achieve his dream. Unfortunately, my hands are tight. I doubt if he will be able to achieve his dream soon given his past criminal record. However, he can assist his inmates in the correction centre in their appeals as a paralegal to earn some points for an early release upon the non-parole being served.
    

Sentence for Mr Deshwar Dutt

22. Mr Dutt is a 38-year-old father married with two children. He is currently serving a long prison term of 15 years for a similar offence with a non-parole period of 14 years. By the time he is eligible for parole in 2031, he will be 45 years old. He has committed the current offences by escaping from lawful custody. Given his past record, I am not convinced that he is a suitable candidate to receive a second chance for rehabilitation.
    
23. There are no significant mitigating factors for Mr Dutt. It was revealed at the voir dire hearing that Mr Dutt had received severe injuries and a black eye upon his arrest. He was taken to the hospital on a wheelchair because he had a fracture on his right ankle. The Surgical Registrar at the CWM Hospital observed that Mr Dutt had history of assault and sustained fracture on his right ankle requiring a surgery. He appears to have received a summary punishment upon his arrest which must be taken into consideration in mitigation.
    
24. I add 6 years for the aggravating factors discussed above and reduce 2 years for mitigation to arrive at an aggregate sentence of 13 years imprisonment for all four counts with a non-parole period of 10 years. Having considered the mitigation submission of Mr Dutt, I would not make this sentence consecutive to the sentence he is currently serving. When considered the uncomplete sentence, a consecutive sentence would be harsh and excessive and would be obnoxious to the totality principle.
    

Sentence for Mr Savenaca Vunisa

25. By absconding, Mr Vunisa, waived his right to file mitigation. The starting point and most of the aggravating factors applied to Mr Dutt are also applicable to Mr. Vunisa. However, he did not commit this offence having escaped from lawful custody. Although Mr Vunisa is not serving a prison term, he has 9 previous convictions of similar nature. I add 3 years for the aggravating factors discussed above to arrive at an aggregate sentence of 12 years’ imprisonment for all four offences. By absconding, he failed to corporate with the justice system and is posing a continuing threat to the community. Apart from his previous convictions, he has three pending cases in Nadi Magistrates Court. He has not shown any desire for rehabilitation. Therefore, I fix a non-parole period of 11 years.
    
26. I know this sentence is above the sentencing range prescribed in Tawake guidelines. Tariffs are mere guidelines which do not take away the discretion of the sentencing court to impose a sentence that is best suited to the circumstances of the offence. Before Tawake was decided, the courts applied the tariff prescribed in Wise v State^[4] where the Supreme Court prescribed a sentencing range of 8-16 years for horrific night-time invasions by armed gangsters. Most of the aggravating features that were present in Wise are present in this case. This sentence may be viewed as a bonus for Mr Dutt as his sentence has been made concurrent to the current sentence despite him being declared a habitual offender.
    
27. Summary
    

Mr Deshwar Dutt is sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of 10 years.

Mr Savenaca Vunisa is sentenced to an aggregate sentence of 12 years’ imprisonment with a non-parole period of 11 years.

28. The sentence imposed on Savenaca Vunisa will come into effect on the day he is arrested.
    
29. 30 days to appeal to the Court of Appeal if the offenders so desire.
    

Aruna Aluthge
Judge

30 January 2024
At Lautoka

Solicitors:
Office of the Director of Public Prosecution for Prosecution

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^[1] CAV 0025.2019 (28^th April 2022)
^[2] Suguturaga v State [2014] FJCA 206 (5 December 2014)

^[3] [2020] FJHC 613 (30 July 2020)
^[4] [2015] FJSC 7; CAV0004.2015 (24 April 2015)