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State v Bulitaiwaluwalu [2010] FJHC 140; HAC069.2009S (23 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 069 OF 2009S

STATE

V

1. TOMASI BULITAIWALUWALU
2. VOLAU KOTOISUVA

Counsels : Ms. S. Tagivakatini for the State Accused No.1 in Person
Accused No.2 in Person

Hearings : 5th and 19th March 2010
Sentence : 23rd April, 2010

SENTENCE

1. Accused No.1, you first appeared in court, on this charge on 24th July, 2009. Accused No.2, you first appeared in court, on a similar charge, in criminal case No. HAC 013 of 2010, on 10th February 2010. On 5th March 2010, criminal case No. HAC 013 of 2010 was malgamated with this case. Your right to counsel was explained to you two, and both of you waived the same, and stated you will represent yourselves. The information was put to the two of you, and you both said, you understood the same. You voluntarily entered guilty pleas to the charges.

2. The case was adjourned to 19th March 2010 for the prosecution to present her summary of facts and for the accuseds to advance their plea in mitigation. On 19th March, 2010, the prosecution presented her summary of facts. Briefly, they were as follows. On 2nd June 2009, at about 9.30am, Rajnita Chand and Mosese Labailagi were working at Nokia Mobile Shop, at Ross Street, Nausori. The two accuseds and two other men burst into the shop armed with a chopper. They threatened Ms. Chand and Labailagi with the chopper, and demanded all the office keys and cash in the premise. Mohammed Tanweer and Shelley entered the shop, at the time of the robbery. Tanweer was assaulted by the men, and his mobile phone stolen. Later, the men locked the pair in a room.

3. Roseleen Prasad and Ashneel – two customers – entered the shop, while the robbery was in progress. They were assaulted and locked in a room. The men later forced Ms. Chand to open the shop safe. She did, and the men stole all the cash, and the mobile phones in the safe. They also broke the cash register, and stole all the cash therefrom. The men then locked Ms. Chand and Labailagi in a room, and fled the scene. A stock-take was immediately done, and it was found that the following items were stolen: $1,100 cash, assorted recharge cards valued at $2,133, two mobile phones valued at $1,100, all to the total value of $4,333.00.

4. The matter was reported to the police. An investigation was carried out. A police photoboard was presented to Ms. Chand on 2nd June 2009, and she immediately identified accused No.1, as one of the robbers. On 4th June 2009, a police photoboard was presented to Mr. Labailagi, and he immediately identified both accuseds and another, as some of the robbers, who attacked him, at Nokia Mobile Shop, on 2nd June 2009. On 22nd June, 2009, accused 1 was caution interviewed by police. He admitted the offence. On 3rd August 2009, the second accused was caution interviewed by police. He also admitted the offence. They were later charged for "robbery with violence".

5. The court then checked with you two to see that the ingredients of "robbery with violence" were satisfied in this case. You both admitted to the court that you two were part of a group of youths that robbed the Nokia Mobile Shop staff, on 2nd June 2009, of the items mentioned in the charge. As a result of the above, the court found you two guilty as charged, and convicted you two accordingly.

6. Both your antecedent reports and previous convictions were presented, and both of you, agreed to the same. Accused No.1 had six previous convictions from 2004 which included four larceny type offences and two traffic matters. Accused No.2 had twelve previous convictions – all of which were larceny type offences. You both submitted written and verbal pleas in mitigation. I have carefully considered them, and all the documents submitted in this matter.

7. "Robbery with Violence" carries a maximum sentence of life imprisonment. On sentencing principles to be applied to your case, I agree entirely with His Lordship Justice Daniel Gounder’s comments in paragraphs 4,5,6,7,8,9 and 10 of State v Sakiusa Rokonabete, Akuila Dromule, Alifereti Tokona and Guston Frederick Kean, High Court, Suva Criminal Case No. HAC 118 of 2007. The tariff now for "robbery with violence" is a sentence between 6 to 14 years imprisonment. The actual sentence with depend on the presence or otherwise, of strong mitigating and/or aggravating factors.

8. In your case accused No.1, the mitigating factors were as follows:

(i) you pleaded guilty to the offence, although this was approximately 7 months after your first appearance;

(ii) although the staff of Nokia Mobile Shop were threatened and some of its customers assaulted, no-one was seriously injured during the robbery;

(iii) you were not the one that used the chopper to threaten staff and customers, with serious injuries;

(iv) you are a family man with 2 young kids to support – your kids are 8 and 4 years old;

(v) you are serving 8 years imprisonment, beginning on 9th October 2009, for a similar offence.

9. The aggravating factors, in your case accused No.1, were as follows:

(i) by choosing to join a group and rob the staff and customers of Nokia Mobile Shop in a violent way, you showed total disregard for the rights of others to conduct their business peacefully and in harmony. In addition, you showed total disregard to the safety of others when your group assaulted and threatened the staff and customers with a chopper;

(ii) Although you have been punished for your 6 previous convictions since 2004, you have showed no sign of a progressive attitude to become a good citizen;

(iii) the properties your group stole from Nokia Mobile Shop were not recovered, that is, $4,333.00 worth of properties.

10. Accused No.2, in your case, the mitigating factors were as follows:

(i) you pleaded guilty to the offence, although this was approximately a month after your first appearance;

(ii) as with accused No.1, although the staff and customers of Nokia Mobile Shop were threatened, and some assaulted, no-one was seriously injured during the robbery:

(iii) like accused No.1, you did not use the chopper to threaten the staff and customers of Nokia Mobile Shop, at the time;

(iv) you are serving 30 months prison, beginning on 16th July 2009.

11. The aggravating factors, in your case accused No.2, were as follows:

(i) like accused No.1, by choosing to join a group and violently rob the staff and customers of Nokia Mobile Shop, you showed a total disregard for the right of others to conduct their business in a peaceful and harmonious way. In addition, you put their life and safety at risk, when your group assaulted some of them and threatened them with a chopper.

(ii) although you have been punished for your six previous convictions since 2004, you haven’t shown any positive signs of a change in attitude to become a good citizen.

12. For accused No.1, I will start with a sentence of 10 years imprisonment. For the aggravating factors, I will add 5 years to the 10 years, making a total of 15 years prison. For the mitigating factors, I will deduct 7 years from the 15 years, leaving a balance of 8 years imprisonment.

13. For accused No.2, I also start with a sentence of 10 years imprisonment. I add 5 years for the aggravating factors, making a total of 15 years prison. I deduct 7 years for the mitigating factors, leaving a sentence of 8 years imprisonment.

14. In their plea in mitigation, both accuseds have asked for concurrent prison sentences. Offenders must realize that for every offence they commit, they must be punished; otherwise they will not learn from their previous experience. With this in mind, the court must also take into account the need to rehabilitate prisoners, to enable them to become good citizens in future.

15. Since accused No.1 is already serving 8 years imprisonment since 9th October 2009, his present 8 years prison sentence will be part concurrent and part consecutive. He will serve 3 years of his 8 years sentence on a consecutive basis, and 5 years on a concurrent basis.

16. As for accused No.2, he will serve his present 8 years imprisonment concurrent to his present prison term.

17. In summary, I sentence both accuseds to 8 years imprisonment. For accused No.1, he will serve the 8 years as follows, 3 years is to be served consecutively with his present prison term, and 5 years concurrent to his present prison term. As for accused No.2, the 8 years imprisonment is concurrent to his present prison term.

Salesi Temo
ACTING JUDGE

AT Suva
23rd April 2010