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State v Tuinasavusavu [2004] FJHC 117; HAC0007.2004 (28 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0007 OF 2004

BETWEEN:

STATE

AND:

TEVITA TUINASAVUSAVU and
JONE SAVOU

Counsel: Ms. K. Bavou - for the State
Mr. A. Vakaloloma – for the 2 Accused

Date of Hearing: 28th June, 2004
Date of Sentence: 28th June, 2004

SENTENCE

Tevita Tuinasavusavu and Jone Savou you have each pleaded guilty to one charge of robbery with violence. You have been convicted in accordance with the undisputed summary of facts. It is now my task to sentence you for this crime.

Particulars of the offending

The summary of facts is admitted. It says that on the 19th of November last year the two of you planned to break into the victim’s house. You entered the home twice. On the first occasion about 10.00pm on the 18th of November, although the victim was home he was upstairs watching television. You gained entry through a window in the bottom flat and removed a bag from that room taking the $90.00 you found inside it.

You used that cash at nightclubs in Suva to drink beer. You bought an extra 6 bottles to drink on the way home. When the money ran out you had planned to return to the victim’s home and rob it again. You drank the extra beer in the taxi on the way back home.

You returned again to the victim’s house. At about the same time “coincidentally” the victim had gone outside into his yard searching for a lost mastercard. You jumped him and attacked him inside the compound raining punches and kicks to his face and body. You left this poor man bleeding from the face and eyes. You brutally knocked him to the ground and dragged him inside his home. He tried to shout for help. It is lucky that he had good neighbours and they took action when they heard his cries. You weren’t to know that the neighbours called the police.

You then ransacked the home. Mr. Savou you guarded the victim and you took a mobile phone from his pocket. Mr. Tuinasavusavu you took what you could grab and considered valuable. Whilst checking your booty you lost sight of the victim, he got up and ran outside. Mr. Savou you ran after him and crash tackled him. No doubt you thumped him again and put him to the ground.

There were three of you involved in this incident. At about this time you Mr. Savou called out to your mates and warned them that the police had arrived. You ran from the scene. Mr. Tuinasavusavu you successfully jumped the fence. The third member of the party and Mr. Savou weren’t so lucky. As they were confronted by a police officer one of you swung a long handled cane knife at him. The cane knife missed the police officer but struck you Mr. Savou. You fell unconscious. Mr. Savou the police found a mobile phone, a gold bangle and some cash on you. Mr. Tuinasavusavu you successfully fled the scene but were later identified and arrested. The property taken had a total value of $3,060.00. Not all the property was recovered.

The sad fact of this case is that your victim, Dr. Graham Roberts, is a medical practitioner. He is a lecturer at the Fiji School of Medicine. A visitor to this country using his healing and teaching skills for the benefit of the community. When you put him down you not only caused him serious physical injury later recorded as

1. left eye periorbitol haematoma and subconjunctivital haemorrhage
2. multiple lacerations over the face, left eyebrow, left eye, upper lip and
3. bruises over the forehead and chin.
   

You also terrorised the man leaving him with emotional and psychological wounds that will take much longer to heal.

To your credit when interviewed by the police the two of you admitted taking part in the robbery and you have now pleaded guilty to the crime. You explained to the police that the reason why you offended was that you were looking for money.

Mitigation and Reports

You were both represented by experienced counsel. Ms. Malimali has prepared and filed a thoughtful and comprehensive mitigation on your behalf. In her usual thorough manner she has encapsulated everything that can be said for you in her plea. In addition to that material I have received and considered antecedent history reports for the two of you.

The State have also filed helpful submissions and attached a number of relevant recent tariff decisions. As recently as last week on a criminal appeal I had an opportunity of reviewing these decisions. In particular the very recent Court of Appeal Case of Raymond Sikeli Singh and Others vs The State, AAU0008 of 2000 and a recent High Court sentencing decision by my brother Justice Gates in the State vs Lebobo HAC0016.02S.

I accept the submission by State’s counsel. The first point of reference is the maximum available penalty for robbery with violence. It is life imprisonment. This demonstrates the State regards such offending at the top of the criminal calendar.

In my earlier case of Uluikadavu, Criminal Appeal No. HAA0035 of 2004 (Judgement dated the 25th of June 2004), I considered the second principle enunciated by the Court of Appeal in Singh. As with my brother Justice Gates in Lebobo (supra) I regard the increasing prevalence of home invasion as a serious factor in determining the severity of this sentence. I repeat here what I said:

Home invasions are a particularly traumatic intrusion into the lives of citizens. The most striking feature of these episodes is the sheer terror to its victims. They are set upon within the apparent safety of a private dwelling by complete strangers. These unjustified acts of terrorism by intruders within the home invade the family sanctuary and violate the sense of security that lies at the heart of each home. As such these acts not only affect the lives of their immediate victims but also instil fear in the whole community creating a siege like mentality.

In Uluikadavu, although as here there were three offenders, the young appellant a first offender had no previous convictions, used limited violence in the course of this crime and the victim suffered far less physical injuries. In that case after adjustment for aggravating and mitigation features (starting point of 7 years) I gave the prisoner a term of 6 years imprisonment. This case is worse. There was greater violence and harm to the victim. A higher starting point of 8 years imprisonment is called for.

The aggravating features are:

1. The planning and pre-meditation in the robbery.
   
2. The fact that there were multiple accused.
   
3. The attack occurred in the early hours of the morning after you had been out drinking following your first larceny.
   
4. The Injuries suffered by the victim.
   
5. The violence you meted to the victim including punches, kicks, dragging him into the house, more violence and again further violence to subdue him when he tried run away.
   
6. The vulnerability of the victim held 53 years of age was at the time home alone.
   
7. The total sum of $3,060.00 stolen of which only $890.00 worth of goods had been returned.
   

For Mr. Tuinasavusavu 14 previous convictions.

For Mr. Savou 1 previous conviction for assault.

Against these aggravating features are the mitigating features. For Tevita Tuinasavusavu they are:

1. His age – 21 years old at the time of the offence.
   
2. Co-operation with the police.
   
3. An early guilty plea.
   
4. An absence of weapons.
   
5. Remorse.
   
6. Although he has 15 previous convictions none are for assault and robbery with violence.
   
7. A limited and impoverish upbringing. Only attended school you were in Form 4. You come from a broken home. You are in a de facto relationship and your partner is about to give birth to your first child.
   

I do not accept that the fact you had been drinking before the commission of this offence is a proper mitigating feature. I note that you have spent seven months in custody. The mitigation for Jone Savou is:

1. You were 20 years old at the time of the offending.
   
2. You co-operated with the police.
   
3. You pleaded guilty at the first opportunity.
   
4. No weapons were used.
   
5. You have expressed remorse.
   
6. You have only one previous conviction for assault dated 2001 for which you received a suspended sentence.
   
7. You had limited education up to Form 5.
   
8. You were raised by your widow mother.
   
9. You had been in employment only until 2002 at the time of the offending you were unemployed.
   
10. Apparently a co-offender in an attempt to evade the police brandished a knife at his pursuing officer. It missed the policeman and hit you. As a result of that slash you had to spend three days in hospital. I apply limited weight to this mitigation as the injury occurred during your flight from the crime.
    

As with Mr. Tuinasavusavu I don’t accept that the fact you had been drinking before this offending is a valid mitigation at all. I also do not differentiate penalty on the basis that you were a lookout for the group. Lookouts are as much a part of the offending as the principals involved in the crime. The role of a lookout provides comfort and support. In this role you clearly warned your co-offenders of the need to run when the police arrived. You also took a mobile phone from the victim indicating a greater participation in these events. You have also spent 7 months in custody.

I propose to sentence you jointly. I see no need to differentiate in penalty as between you.

Taking the starting point of 8 years imprisonment I would add 6 years for the aggravating features.

In my view your best mitigation was your co-operation with the police and an early guilty plea. Courts have often recognized that sparing victims the agony of reliving the terror of the crime through the process of an adversarial trial deserves full recognition. In addition the assistance to the due process of justice and sparing the expense of trial deserves some discount. You are both young. You have however maturely expressed the proper remorse for this crime by your co-operation and plea.

For these reasons I see a discount of 5 years being appropriate.

You have also served 7 months on remand and I take that into account.

Conclusion

The result is that the sentence of the Court for you both is that you serve a term of 8½ years imprisonment. You go to jail for 8½ years.

Gerard Winter
JUDGE

At Suva
Monday 28th June, 2004