State v Vulawalu [2012] FJMC 158; Criminal Case 415.2006 (16 July 2012)

IN THE MAGISTRATE'S COURT OF FIJI
AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO.415/06

THE STATE

Vs

JOELI VULAWALU

Sgt. Naidu for prosecution

Accused in person

Sentence: 16.07.2012.

SENTENCE

1. JOELI VULAWALU, you were charged with two counts of ROBBERY WITH VIOLENCE contrary to section 293 (1) (a) of the Penal Code Cap 17 as follows:
   

FIRST COUNT

Statement of Offence (a)

ROBBERY WITH VIOLENCE contrary to section 293 of the Penal Code, Cap 17.

Particulars of Offence

JOELI VULAWALU with others on the 13th day of April 2006 at Nadi in the Western Division robbed Peter Rafesh Chand of $200.00 in cash, assorted recharge cards valued at $350.00, two packets of BH 20 valued at $8.40 all to the total value of $558.40 and immediately before such robbery threatened to use personal violence to the said Peter Rafesh Chand.

SECOND COUNT

Statement of Offence (a)

ROBBERY WITH VIOLENCE contrary to section 293 of the Penal Code, Cap 17.

Particulars of Offence (b)

JOELI VULAWALU with others on the 13th day of April 2006 at Nadi in the Western Division robbed Mohammed Anwar of $15.00 in cash, and immediately before such robbery threatened to use personal violence to the said Mohammed Anwar.

2. You were convicted on both counts after trial. The hearing of this case was taken in this court with your consent.
   
3. The facts of the case are that: On the early hours (3.30am) of 13th April 2006 you with five others robbed one Peter Rafesh Chand, the cashier of Total Service Station. On that day you came in car with other five masked men (you were not masked), broke the glass with a hammer, two of you went inside and robbed him of cash, recharge cards and cigarettes in all $558.40. Before the robbery the intruders threatened the complainant to cut his neck if he delayed to deliver the items demanded. They were also carrying cane knife and pinch bar.
   
4. On the second count, at the same time you threatened one Mohammed Anwar to kill and robbed him of $15.00 cash.
   
5. The property taken from the victims amounting in all to $573.40 was never recovered.
   
6. Aggravating Factors: i. Night robbery; ii. Joint criminal enterprise. iii. Total lack of respect towards the victim's property and personal enjoyment of property rights; iii. The pain and shock caused to the victims.
   
7. Mitigating Factors: i. Your personal circumstances; ii. Show of keen interest in rehabilitation in prison in that you had participated in rehabilitation programme such as Character First, Purpose of life, Substance Abuse and Anger and Stress Management. iii. Remorse.
   
8. You admitted 13 previous convictions from 1995 till 2008. However I have disregarded the convictions that are 10 years old. Still you have 7 live previous convictions including similar offences. Currently you are serving 10 years imprisonment for a similar offence.
   
9. The Sentence: The offence 'robbery' carries a penalty of life imprisonment according to section 293-(1) of the Penal Code Cap 17.
   
10. From a 5 year starting point, 5 1/2 years for critical role in ensuring the joint criminal enterprise of Burglary (s. 299 (a) & (b) and robbery with violence (s.293 (1) ) was successful, for a cowardly home invasion violating the privacy of a family, total lack of respect towards victims property and personal enjoyment of their rights in their own home; Yasa's co-accused stern punishment of 10 years to indicate public disapproval of conduct which strikes at a very heart of safety and security of the public: per Goundar, J in State v Sailosi Ralago Volivale [2009] HAC 30 (A) /05S 18 June 2009.
    
11. In Joeli Valuwalu v The State [2011] FJSC 6; CAV0006.2010 (8 April 2011) The Hon Chief Justice Anthony Gates delivering judgement of the Supreme Court held that:
    

"[22] In the instant case, both of the robberies were terrifying events for the victims. These were serious offences involving home invasion at night, committed by a group of armed masked men, with the smashing of glass, and in one of them, injuries inflicted on the complainant. Sentences of 6 years and 4 years were not excessive, and the ordering of consecutive service of these terms was wholly correct".

12. Accordingly, in your case for each count of robbery with violence, I would select 5 years imprisonment as my starting point. I increase by 9 months to reflect the above aggravating factors to arrive at 5 years and 9 months. I deduct 6 months for your mitigation. You are not entitled to any credit for your previous good behaviour in that you had admitted 7 live previous convictions. Your final sentence on each count of robbery with violence is 5 years and 3 months.
    
13. The offences on both counts had been committed in same string. I therefore considering the totality principle order that these sentences are to be served concurrently with each other. Hence in total you are to serve 5 years and 3 months. However you must serve this sentence concurrent to any other serving sentence.
    
14. The duty cast upon this court is not only be fair to an accused as urged by you, but also to serve justice to the society at large as expressed by Winter J, in the case of Viliame Cavuilagi v State [Crim. App. HAA 0031 of 2004].
    
15. The sentence might act as a deterrent to the offender and others who fall into pattern of semi-professional criminal to support themselves.
    
16. Society is entitled to sideline or warehouse offenders like you out of the community for longer periods of time so that at least during the term of incarceration they cannot wreak havoc on the lives of law-abiding citizens.
    
17. Offenders like you deserve punishment that fits the circumstances of the crime.
    
18. Twenty eight (28) to appeal.
    

ORDER

19. JOELY VULAWALU, you are hereby sentenced to FIVE (5) YEARS and THREE (3) MONTHS imprisonment. This sentence to be served concurrent to any other pre-existing sentence.
    

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 16th day of July, 2012.