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State v Namua [2010] FJHC 548; HAC058.2009S (26 November 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 058 OF 2009S

STATE

V

1. OSEA NAMUA
2. ROPATE VAKATALE
3. ILIESA NACA

Counsels: Ms. N. Ratakele for the State
Mr. S. Titoko for Accused No. 1
Accused No. 2 in Person
Accused No. 3 in Person

Hearings: 4th to 13th October, 2010
Summing Up: 15th October, 2010
Judgment: 20th October, 2010
Sentence: 26th November, 2010

SENTENCE

1. In a judgment delivered on 20th October 2010, this court found Ropate Vakatale and Iliesa Naca, guilty of “robbery with violence”, contrary to section 293(1)(a) of the Penal Code, Chapter 17 (Count No. 1). They were found guilty of being part of a group of youths who, forcefully entered and ransacked Mathura Prasad’s house, on 19th December 2008, at Nasinu in the Central Division and violently robbed him of $500. They were accordingly convicted as charged.

On the second count of “criminal intimidation”, contrary to section 330(a) of the Penal Code, this court found Osea Namua and Ropate Vakatale guilty as charged. The court found that Osea Namua and Ropate Vakatale criminally intimidated police officers Solomone Nute and Samuela Namusu, on 19th December 2008, at Suva in the Central Division, when they threatened them with serious injuries, while being armed with a cane knife and pinch bar. The court convicted them as charged, on count No. 2.

On the third count of “resisting arrest”, contrary to section 247(b) of the Penal Code, this court found Ropate Vakatale guilty as charged. Ropate Vakatale resisted being arrested by police officers Solomone Nute and Samuela Namusu, when they went to arrest him. The court convicted him as charged on count No. 3.

“Robbery with Violence” carries a maximum sentence of life imprisonment. The tariff is a sentence between 6 to 14 years imprisonment: see Sakiusa Basa v The State, Criminal Appeal No. AAU 0024 of 2005, Fiji Court of Appeal; Semisi Wainigolo v The State, Criminal Appeal No. AAU 0027 of 2006, Fiji Court of Appeal; Singh v The State, Criminal Appeal No. AAU 0008 of 2000, Fiji Court of Appeal. The actual sentence will depend on the mitigating and aggravating factors.

“Criminal intimidation” carries a maximum sentence of 10 years imprisonment.

There appears to be no tariff for this offence, but the cases referred to showed sentences between 1 8 months to 4 years imprisonment: see Kelemedi Lagi & Others v The State, Criminal Appeal No. HAA 004 of 20045, High Court, Suva;

Paulino Via v The State, Criminal Appeal No. HAA 080 of 20065, High Court, Suva and State v Rokotunidau, Criminal Case No. HAC 011 of 20055, High Court, Suva. The actual sentence will depend on the aggravating and mitigating factors.

6. “Resisting arrest” carries a maximum sentence of 5 years imprisonment. The State is asking for a 12 months prison sentence, relying on the authority of Ravonokula v The State, Criminal Appeal Nos. 7 — 10 of 2004, High Court, Labasa.

7. The aggravating factors for Ropate Vakatale and Iliesa Naca, on the “robbery with violence” charge, were as follows:

(i) You both attacked a man, his wife, a daughter and two sons, while they were sleeping in the comfort of their home, on 1 9th December 2008, at about 2.3Oam. Like other citizens of Fiji, they were resting peacefully in their own home. Out of sheer arrogance, you two and others decided to break into Mr. Prasad’s home, and robbed him of $500. As a result, you both showed utter disregard to the Prasad’s right to enjoy the comfort of their home peacefully;

(ii) When you two entered the Prasad’s house on 1 9th December 2008, you showed utter disregard to Mr. Prasad’s personal safety when you punched him up, kicked him, threatened him with a pinch bar, and then knocked him unconscious with the same. This is the worst insult you can ever do to a person in his own home. Not to mention the fear you instilled in the minds of his wife and children, when your group were attacking Mr. Prasad in his sitting room. You both showed utter disrespect to the Prasad family’s dignity.

(iii) By stealing Mr. Prasad’s $500, you showed utter disregard to his property rights.

8. On the “criminal intimidation” charge, the aggravating factors for Osea Namua and Ropate Vakatale, were as follows:

(i) Police officers are paid by the taxpayers to ensure that law and order exist in the streets. The complainant police officers were investigating the robbery at the Prasads, at Caubati, on 1 December 2008. They were lawfully going about their business and duties when they stopped the two of you at Namadi Heights. Yet you two intimidated them by threatening them with a cane knife and a pinch bar. You two showed utter disrespect to them and to their safety.

9. On the “resisting arrest” charge, Ropate Vakatale, you showed utter disrespect to the maintenance of law and order.

10. The mitigating factors in this case, were as follows:

(i) There are few mitigating factors for the accuseds in this case. As for Osea Namua, the only mitigating factor I found is the fact that he was remanded in custody from December 2009, that is, he was in custody for approximately 11 months. In addition, the victims of his offending were not injured, that is, the two policemen — Solomone Nute and Samuela Namusu.

(ii) For Ropate Vakatale, the only significant mitigating factor is the fact that he had been remanded in custody for approximately 1 year 11 months. On count No. 2, as with Osea Namua, the victims were not injured. Likewise, on count No. 3, the victims were not injured.

(iii) As for Iliesa Naca, the significant mitigating factor, was that he was a first offender. However, he had participated in a serious home invasion robbery with violence.

11. On count No. 1, for Ropate Vakatale and lliesa Naca, I start with a sentence of 9 years imprisonment. For the aggravating factors, I add 3 years, making a total of 12 years imprisonment. For the mitigating factors, I deduct 4 years from the12 years for Ropate Vakatale, leaving a balance of 8 years imprisonment. For Iliesa Naca, for the mitigating factors, I deduct 6 years from the 12 years, leaving a balance of 6 years imprisonment.

12. On count No. 2, for Osea Namau and Ropate Vakatale, I start with a sentence of 9 years imprisonment. For the aggravating factors, I add 2 years, making a total of 4 years imprisonment. For the mitigating factors, I deduct 2Y2 years, leaving a balance of 18 months imprisonment.
13. On count No. 3, I impose a sentence of 6 months imprisonment.

14. In summary, I sentence the accuseds as follows:

(i) Robbery with Violence (Count No. 1):

(a) Ropate Vakatale - 8 years imprisonment

(b) Iliesa Naca - 6 years imprisonment

(ii) Criminal Intimidation (Count No. 2):

(a) Osea Namua - 18 months imprisonment

(b) Ropate Vakatale - 18 months imprisonment

(iii) Resisting Arrest (Count No. 3):

(a) Ropate Vakatale - 6 months imprisonment

15. Given the principle of totality of sentence, Ropate Vakatale will serve his sentence in count Nos. 1, 2 and 3 concurrently, that is, a total sentence of 8 years imprisonment.

16. For Iliesa Naca, his total 6 years imprisonment is concurrent to his present prison term.

17. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, Ropate Vakatale must serve a non-parole period of 7 years on his 8 years prison sentence, and Iliesa Naca must serve on a non-parole period of 5 years on his 6 years prison sentence. I order so accordingly.

Salesi Temo
ACTING JUDGE

AT Suva
26th November 2010