Regina v Rofeta [2011] SBMC 5; Criminal Case 293 of 2010 (12 April 2011)

IN THE CENTRAL MAGISTRATE COURT
SOLOMON ISLANDS

Criminal Case No. 293/10, 71/2010 & 70/10

REGINA

V

DANIEL ROFETA (293/2010)
ARNOLD BATARII (71/2010)
BONIFACE OIOFA (70/2010)

Date of Sentence Submission: 4/4/2011
Date of Sentence : 12/4/2011

Pros: Mr R. Barry & Ms Walenenea
Defence: Acc 1: Mr Steve Barlow
Acc 2: Mr Edmond Cade
Acc 3: Mr B. Ifuto'o

SENTENCE

(1) The accused Daniel Rofeta, Arnold Batarii & Boniface Oiofa pleaded guilty to one count of assault with intent to rob contrary to section 293 (ii) of the Penal Code.

MAXIMUM PENALTY

(2) The maximum penalty for this offence is life imprisonment and in the Magistrate Court, the maximum penalty of 5 years imprisonment can be imposed.

AGREED FACTS

(3) The agreed facts of this are as follows:

• On the afternoon of 26 January 2010, at about 5:20 pm, a 64-year old Australian lady Elizabeth Vollrath left her business in Chinatown to drive home to Ranandi. She operated a clothing business which was a part of Solomon Tropical Products. She left the shop with her husband John and two security boys.
  
• As she left, she noticed some men standing outside her shop looking at her.
  
• She was carrying about $80,000.00 in cash being the day's takings. She took the money to her car and placed it in the back of her car being a white Daihatsu Feroza.
  
• She drove her car and was followed by her husband in his car being a blue Daihatsu Feroza.
  
• They went down the one way street in Chinatown and turned left which leads to Lawson Tama.
  
• Soon after leaving the shop a white Toyota car without any number plates on it, driven by Batarii and with Rofeta and Oiofa also inside, followed Elizabeth and her husband.
  
• Elizabeth and her husband turned right onto the Kukum highway heading to Ranadi.
  
• The car with the three men in it tried to drive directly behind Elizabeth's car. However, the victim's husband who was travelling behind her squeezed the offender's vehicle out.
  
• Elizabeth and her husband turned left from the main highway at Ranadi. They then turned left again at the next intersection.
  
• The offender's vehicle followed them into Ranadi then sped past their vehicles. It turned right into the road where Elizabeth and her husband lived and dropped Rofeta and Oiofa off. They were carrying bush knives with a 30cm blade.
  
• The car was then driving by Batari to the end of the road near a T-intersection where he waited.
  
• When Elizabeth turned into the road where her house is located Rofeta and Oiofa were on the road not far from the gate entrance to Elizabeth's house. As she looked at them Rofeta was on her left and Oiofa was on her right. She recognized Oiofa as being one the two men seen outside her business when she left Chinatown.
  
• Oiofa hit Elizabeth's windscreen with his knife shattering it.
  
• Elizabeth pushed her foot down on the accelerator and she was able to drive past them and get to her house without being forced to stop or the money in the vehicle being taken.
  
• Her front driver's window was also smashed by Oiofa with his knife during the attack.
  
• Rofeta at some stage raised his knife whilst in the vicinity of Elizabeth's car but did not make any contact with anything.
  
• Elizabeth skidded past her garage and had to reverse back to get into her drive way. She sounded the horn and was let in the gate.
  
• She suffered cuts to her right cheek and three fingers as a result of this attack. These were caused by both the shattered glass and the knife. She was considerably shaken up being terrified for her life.
  
• After Elizabeth's car went past them the two men, Oiofa and Rofeta, turned and ran after her.
  
• Her husband John, whilst in his car, tried to protect his wife.
  
• He then drove his car and pursued the two men. He hit Rofeta with his car. Rofeta got up and kept running.
  
• At this stage, Oiofa turned and ran towards John and stopped at his front driver's window. He raised his bush knife and smashed the driver's window covering John in glass.
  
• John kept driving his vehicle after the men.
  
• Rofeta picked up a rock with two hands as John drew near but he dropped it and kept running. Rofeta was hit again by John in his car as he pursued him.
  
• The two men ran to the end of the street where it becomes a T - intersection. At this stage, Oiofa again approached John's vehicle and raised the bush knife at him but did not strike.
  
• Oiofa then turned right heading east and Rofeta turned left heading west.
  
• The white car driven by Batarii then travelled from east to west across the T – section. As he did this, Rofeta jumped in to the car without the car stopping.
  
• John pursued the white car at high speeds of up to 120 km/h back to town before losing them at the Cemetery road.
  
• Soon after this, the white car was seen speeding through Green Valley – where Batarii was living. Soon after this the same car was seen leaving Green Valley – this time with number plates on it.
  
• The white car was subsequently identified by witnesses including Batarii's girlfriend as belonging to him.
  

Records of Interview

(4) Rofeta was arrested by the police on 26 June 2010 and in his Record of interview he said the following:

• He admitted being involved
• He was picked up by Oiofa and Batarii near the multipurpose hall after playing
• He was asked to get in the car
• The other two didn't say anything inside the car
• He didn't know about the plan
• At Ranadi the driver Batarii forced him to get out of the car
• He was told by Oiofa they were waiting for a truck
• Oiofa ran to the truck when it came
• He did not know what Oiofa did to the truck
• Another car chased him and hit him
• He ran to their car and got in and took off
• He didn't know the name of the driver
• He did not hold anything
• They drove to Green Valley after
  

(5) Batarii was arrested by police on 28/1/10 and in his Records of interview he said as follows:

• Admitted being the driver of the car
• He was approached by Rofeta to take him to Pt Cruz to look for Rofeta's brother
• He didn't know Rofeta's name
• They went to Chinatown on Rofeta's suggestion where they found his brother
• They both came to his car and told him to take them to Ranadi to see a friend
• He was ordered to follow the two cars and they went to Ranadi
• The other two then pulled out bush knives
• He was ordered to stop and the other two jumped out
• He drove down the road and his car stalled because of over heating
• He saw Rofeta running down the road
• Luckily the engine started
• Rofeta jumped in with the knife
• He sped away because the white men was chasing him and drove to Green Valley
• He took off the number plates to replace them with the same number because it was old
• Rofeta and his brother planned this and they forced him
  

(6) Oiofa was arrested by the police on 28/1/10 and was interviewed by the police on 29/1/10 and he said the following:

• On 26 January he was at school
• He met the other two co offenders in China Town
• Rofeta told him that he would drop him home
• They then went to Ranadi
• He did not know the owner of the car
• Batarii was driving the car
• They followed a blue car
• He and Rofeta were dropped on the side of the road with bush knives
• Rofeta cut the truck of the victim both the back and the side
• After that he ran to the main road
• He didn't know who was planning the attack because on the way Batarii just told him to get out of the car
• Rofeta gave him the knife
• The intention was to take money from the white woman
• He was following the other boys.
  

MITIGATIONS

(7) ROFETA

• Mr Barlow submitted that Rofeta was picked by chance and that he was forced to get out of the car by force (and he concedes that he is not raising the defence of duress)
  
• He further submitted that although he was in possession of a bush knife he did not inflict any violence, and did not strike the cars with the bush knife.
  
• The accused is 21 years old, married with 2 children aged 3 years & 1 year. He was living with his wife in Honiara and she returned to Malaita after he was charged for this offence. He has never been to school and is unable to read or write. He was in Honiara for 2 years and worked as a security officer. He is a first offender.
  
• Mr Barlow also submitted that Rofeta indicated that he wanted to plead guilty to the charge in November/December 2010. This matter was set down for trial for 3 weeks commencing 14/3/11 and 15/3/11 Rofeta pleaded guilty to the charge.
  
• It was further submitted that Rofeta was not the brains behind the planning of the robbery and he should receive a lesser sentence than the other 2 accused.
  

BATARII

• He pleaded guilty on 15/3/11 as well and Mr Cade submitted that suggestions to enter a plea of guilty was initiated on 8/3/11.
  
• Batarii is 38 years old married with 1 child.
  
• He left school after completing form 5 at KGVI Secondary school and immediately thereafter, he was employed as a pay roll officer at Honiara City Council until the date of his arrest on 28/1/10.
  
• He was earning $700 per fortnight and was terminated because he was remanded in custody.
  
• He was also operating a taxi business to supplement his income and this was the taxi used in the robbery and was seized by police.
  
• It is conceded by Mr Cade that the taxi may be forfeited to the state as it was used in this crime.
  
• It was also submitted that Batarii agreed to become involved in this offence in order to obtain money to assist his family as his wage's were not sufficient.
  
• He is first offender.
  
• It was further submitted that he was not involved in the planning of the offence, although he agreed to provide the getaway vehicle and also assisted in the escape of one of the offenders.
  

BONIFACE OIOFA

• He only entered a guilty plea after he challenged the admissibility of his record of interview and his photo identification. The voir dire was heard for 5 days from 16 – 22nd March 2011 and after the ruling on 24/3/11 he entered a plea of guilty to the charge.
  
• He is 21 years old and single and was attending a computer course at IT Solutions.
  
• He is a first offender.
  
• He denied being the ring leader.
  
• He said he was in front of the ABA store in China town when he was asked by Rofeta to get into the car and he will be dropped at Vura Heights.
  
• That he did not benefit from this robbery.
  
• That he was very cooperative with the police during the record of interview.
  

PARTICIPATION IN THE OFFENCE

(8) (a) Mr Rofeta in his record of interview said that he was picked by Oiofa

& Batarii. The other 2 did not say anything to him inside the car, and he had no knowledge about the plan and Batarii forced him get out of the car at Ranadi. He was a security officer at that time for some 2 years and by virtue of his job he would have received training in protecting other people and their properties and no doubt he would have received training as to how to conduct himself. He had more than ample opportunity to retreat if he wanted to. He could have retreated when he was dropped off at Ranadi and he decided not to do so. Although he did not strike the cars with the bush knife, he persisted in being around despite being hit by John's car twice. All this does not correspond with the actions of a person who acted foolishly or made an ill considered decision as suggested by his counsel Mr Barlow. It clearly displays the actions of a man who was determined to get at the money and his actions further displays that there was no reluctance on his part as he was indeed part of this team.

(b) Batarii in his record of interview said he was approached by Rofeta to look for his brother who was coincidently found in China town where the victim's shop was. If what Batarii says is correct that he was approached by Rofeta then what Rofeta said was not correct that he was picked by Oiofa and Batarii. Batarii further said that he was ordered to follow the 2 cars. His manner of driving in following the victim's car does not suggest that. He tried to cut in between the victim and her husband and could not do so as John squeezed him out. He then sped off and dropped Rofeta and Oiofa with 2 bush knives and he knew where the victim lived. Was this dropping off at Ranadi a sheer coincidence? His car did not have number plates. Why remove the number plate? His counsel has submitted that the offence was not pre-meditated and that he elected to participate in the plan on the way to Ranadi. I find this submission to be preposterous. He provided the getaway vehicle if successful. He waited at the scene. If he did not provide the vehicle this offence could not have been committed. I find that he played a great part in the planning and execution of this offence.

(c) Oiofa in his record of interview said that he was told by Rofeta that he would be dropped home and so he got into the car. He further said he did not know who was planning the attack and that Batarii just told him to get out of the car and Rofeta gave him the knife. His counsel has correctly conceded that Oiofa and others where on a joint enterprise and shall be equally responsible for the offence. He was more aggressive than the others in executing the plan and he used the knife which shattered the windows of the victim's car and caused her injuries. He also damaged the window of John's car.

PARITY ON SENTENCE

(9) In my view all the accused played an equal part and therefore each one of them will be treated alike when I impose the sentence and there will be no disparity in their sentences.

IMPACT ON THE VICTIM

(10) The victim was injured and traumatised. Although no victim impact report was tendered but it was accepted by the defence that the victim was traumatised and injured I find the victim was indeed traumatised and that this incident was extremely terrifying for her and her husband. She had to receive counselling as a result of this incident in Australia.

(11) I have been told by the counsel that no case law was found in the Solomon Islands, which dealt with the sentence for this offence of assault with intent to rob.

(12) This is a case which falls within the upper end of the range of seriousness of the offence.

(13) It has been conceded by all counsels that the only sentence applicable is immediate imprisonment and I agree with that.

(14) Because the offence falls under the upper end of the range of seriousness I will place a starting point of 5 years.

DISCOUNT FOR GUILTY PLEAS

(15) Admittedly, all accused are entitled to a discount on the sentence for their guilty pleas. Rofeta indicated his plea in November/December 2010 whereas Batarii indicated it some days before the trial and Oiofa pleaded guilty after the voir dire. Counsels have provided me with many case authorities. I found the judgment of Jonathan Qoloni vs Regina (2005) SBHC 73, HCSI – CRC 076 of 2005 a decision of Palmer CJ to be very helpful. In this case it was discussed that the utilatarian value of a plea should generally he in the range of 10 – 25%. It was stated in that case that:

"what is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge."

(16) In this case having taken all the matters into consideration and discount for each accused for their plea will be as follows:

(i) Rofeta	16%	=	10 months
(ii) Batarii	15%	=	9 months
(iii) Oiofa	12 %	=	8 months

(17) So the sentences for each accused are as follows:

(i) Rofeta	5 years less 10 months	= 4 years 2 months
(ii) Batarii	5 years less 9 months	= 4 years 3 months
(iii) Oiofa	5 years less 8 months	= 4 years 4 months

(18) I also take into account the time spent by each accused in custody which is as follows:

• (i) Rofeta has been in custody since 26/6/10
• (ii) Batarii has been in custody since 29/1/10
• (iii) Oiofa has been in custody since 29/1/10
  

(19) The total sentence is as follows:

(i) Rofeta - 4 years 2 months back dated to 26/6/2010.

(ii) Batarii - 4 years 3 months back dated to 29/1/2010

(iii) Oiofa - 4 years 4 months back dated to 29/1/2010

CONFISCATION ORDER

(20) The Director of Public Prosecution has made an application for Batarii's car to be confiscated pursuant to section 33 of the Proceeds of Crimes Act 2002. Mr Cade is not opposing this application. The car belonging to Batarii was used in the commission of this offence and I therefore order that the white Toyota Corolla Reg No. A7799 shall be confiscated.

_________________
Shafi Khan
Principal Magistrate