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State v Wainiqolo [2006] FJHC 53; HAC015.2004S (28 July 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC015.04S

THE STATE

V

SEMISI WAINIQOLO

Fiji High Court, Suva
28th July 2006
Gates J

SENTENCE

Robbery with violence, being together with others s.293(1)(a) Penal Code; felony, maximum punishment life imprisonment; found guilty after trial; serious offending; gang of 4 attacked supermarket at closing time; armed with cane knives, iron bar, and bottles; wearing masks; minor injuries to 2 staff; customers and staff put in fear; over $150,000 in cash and cheques stolen; nothing recovered; only one member of gang apprehended; Accused aged 45; many prior convictions from 1977 onwards; 6 for robbery with violence; normal tariff inapplicable; no mitigation; need for deterrence, for "warehousing"; superior claim of society to protection from grave nuisance and danger; necessity for lengthy term of imprisonment.

Counsel:
Mr A. Rayawa for the State
The Accused in Person

[1] Sentencing in this matter had to be deferred since the Accused raised disputes on his date of birth and on his criminal record from 1998 onwards. He was not traceable through the Registrar of Births, Deaths and Marriages but he says he is 46 on 17.8.06. The details of two recent sentences one for 7 years imprisonment and one for 10 years consecutive both for robbery with violence were not available. Since this required the taking out of files from police archives the matter was put off from 24th to 28th July 2006.

[2] The Accused has been found guilty after trial by the unanimous opinions of the assessors and by my concurring judgment. The conviction is for the felony of robbery with violence with the aggravation of being together with others at the time, contrary to section 291(1)(a) of the Penal Code. The offence attracts a maximum term of life imprisonment.

[3] On 1st May 2004 the Accused with at least 3 others raided the R.B. Patel Supermarket at Centrepoint. They were masked and armed with cane knives, an iron rod, and bottles. They committed their crime at 7.30 pm, which was closing time for the store. In the process two members of staff received minor injuries. Customers and staff appeared to have been shocked and frightened by the experience. The robbers ran out and made their escape. They took with them a cash box and till takings amounting to $150,359.24. None of that money has been recovered. Only one of the robbers has been apprehended, the present Accused. This apprehension and arrest was only possible since he lifted his mask to carry the cash box more easily whereupon two members of staff were able to get a close look at him.

Aggravating factors

[4] This was a daring robbery. It must have been carried out after careful observation or with some inside information. It had no doubt required some planning. It was a frightening experience for staff and customers alike, converting what should have been a routine shopping visit for some into an occasion of uncertainty, anxiety and danger. Somebody could have been badly hurt. Two staff were injured albeit in a minor way. A security guard was hit with an iron bar and a cashier fell over backwards in the panic. As it was, a great deal of money was taken, now lost permanently, for which ultimately the community will have to bear the cost in one way or another.

[5] The public rightly seek protection from the courts. That can only be by way of long terms of imprisonment for offenders in order to send stern messages to all those who might consider making similar raids. This offence was at the top end of the range for robbery with violence. The targeting by armed gangs of supermarkets, petrol stations, banks, jewellery shops, and other commercial establishments must be met by more severe terms of imprisonment than hitherto. The offence was further aggravated by the fact that persons were injured in the course of the robbery and by the magnitude of loss which was unrecovered. The normal tariff is therefore not applicable: Sakiusa Basa v The State, Court of Appeal Fiji, No. AAU004.05S, 24th March 2006 at para 19; Tomasi Vosalevu v The State, Court of Appeal Fiji, No. AAU0002.05S, 14th July 2006 para 8.

Mitigating factors

[6] There is no mitigation here. Though an accused is not to be sentenced for a bad record, a bad record cannot give rise to any discount. The Accused has a very lengthy police record commencing in 1977. It includes 6 convictions for robbery or robbery with violence. His last 2 convictions, both for robbery with violence resulted in terms of 7 years imprisonment and 10 years imprisonment consecutive, a total of 17 years imprisonment, less a few months because of the different dates on which he was sentenced. It is anticipated his release date for good behaviour will be 2020. The sentence of 10 years was imposed for an offence committed after you had committed the offence in today’s matter.

[7] After you have led a life of crime for nearly 30 years, with the last few years featuring serious gang robberies you do not seem a suitable subject for reform or improvement. This is a pity. You were well educated and come from a good family. You are intelligent and could have made something of your life. You have behaved well throughout these court proceedings.

[8] I cannot overlook however the gravity of this offence, and it is for this offence alone you must be sentenced. It appears that you were out of trouble between 1998-2003. then you returned to Suva and to serious crime again. You present a very serious nuisance and danger to society, which has a superior claim to protection in this regard from any consideration you might urge for yourself. You must be kept out of circulation for a long time because of this crime, a course sometimes described as "warehousing". If I were to make your sentence consecutive to your existing lengthy terms you would be left with no hope at all. Instead I shall make your term concurrent. But in exercising the sentencing discretion it is necessary to provide a longer sentence in order to achieve in totality a sentence which will add something to the terms you are presently serving, without which you would receive no effective punishment at all for this offence.

[9] You are sentenced to serve a term of 14 years imprisonment, concurrent to all existing terms.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the Director of Public Prosecutions, Suva
The Accused in Person