IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 025 OF 2010

BETWEEN:

STATE

AND:

1. ESIRA NAWAQALEVU
2.	WAISALE MOIERE
3.	TOA TURAGACATI

Counsel: Mr. M Kaisamy  - for the State
Mr. S Waqainabete - for 1st Accused
2nd & 3rd Accused in Person
(Assisted by S Waqainabete as duty solicitor)

Date of Hearing: 27th, 28th, 29th, 30th June and 1st July 2011
Date of Sentencing Submission: 5th July 2011 [2.00p.m.]

SENTENCE

1. 	The Director of Public Prosecutions had originally preferred following charges against all three Accused persons.

FIRST COUNT

Statement of Offence

MURDER: Contrary to Section 199 and 200 of the Penal Code, Cap 17.

Particulars of Offence

ESIRA NAWAQALEVU, WAISALE MOIERE AND TOA TURAGACATI 
on the 6th day of December, 2009 at Korovou, Bua in the Northern Division murdered Joeli Rayawa.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1) (a) of the Penal Code Cap 17.

Particulars of Offence

ESIRA NAWAQALEVU, WAISALE MOIERE AND TOA TURAGACATI on the 6th day of December 2009 at Korovou, Bua in the Northern Division robbed the Raviravi Shopping Centre of 2 carton 400z rum valued at $1,500.00, 2 cartons 26oz rum valued at $1080.00, 1 carton gin valued at $600.00, 1 carton of fanta juice valued at $43.00, 3 gross BH 10 valued at $200.00, 18 packets of BH valued at $52.20, 1 carton Fiji gold valued at $60.00, 5 school bags valued at $75.00, 3 gas lighter valued at $6.60, 11 bottles of Fiji bitter valued at $44.00, 1 pair hand gloves valued at $5.00, 1 box gas lighter valued at $110.00, goat nail cutter valued at $30.00, 1 box of large Sony battery valued at $28.00, 3 tin corned beef valued at $6.00, 1 carton of Fiji bitter stubby valued a $50.00, 15 bottles stubby valued at $37.00, 1 pair soccer boot $140.00 and 2 torch valued at $19.00 to the total value of $4069.80. While in the act the three used personal violence against Joeli Rayawa and Kaususu Leilei.

2. 	At the very commencement of the trial the 1st Accused Esira Nawaqalevu pleaded guilty to the offence of Robbery with Violence and urged the prosecutor to reconsider the charge of murder, since the prosecutor insisted of the murder charge that proceeded against the 1st Accused.

3. 	The 2nd Accused and 3rd Accused persons pleaded not guilty to both the counts and proceeded with the trial. The only incriminative evidence was the confession made by the Accused persons to the police, at the caution interview. While the 1st and 3rd Accused persons admitted their statement to the police 
was made voluntarily, the 2nd Accused challenged the voluntariness of the statements. A voir dire inquiry held to determine the voluntariness of the statement after the inquiry this Court held that the statement was made voluntarily.

4.	From that time onwards on several occasions, in the absence of the assessors the 2nd and 3rd Accused persons wants to change their plea of guilty in connection with Robbery with Violence, if the State reconsider the charge of murder. The prosecutor did not accept the offer and continued with the trial.

5.	At the end of the case for the prosecution all three Accused persons made an application of no case to answer regarding the charge of murder. In the same time they did not make the same application for the offence of robbery with violence. After hearing submissions from all parties, this Court held that the prosecution failed to prove the necessary elements of the 1st count namely, the charge of murder, and acquitted all three Accused persons from the charge of murder.

6. 	2nd and 3rd Accused persons were informed, that this Court decided to call for defence. Both Accused persons moved Court, that they want to change their earlier plea of not guilty and enter a plea of guilty. Information read again to both Accused persons. Both pleaded guilty to the offence of robbery with violence.

7.	Prosecutor after consulting with the Accused persons and the defence Counsel submitted following summary of facts. 

"Esira Nawaqalevu, Waisale Moiere and Toa Turagacati of Koronaisolo, Bua on the 6th of December 2009 robbed the Raviravi Shopping Centre of assorted items worth approximately $2711.00.

On the given date the three accused under a mango tree at Koronaisolo village planned and agreed to break into the Raviravi shop. Hence all three got one each horse and then proceeded as planned. They followed a track beside Oilimoto, they crossed two creeks until they came to a pine area. They continued on the pine road beside Tomu's shop until they reached a hill at the Vunisea bridge. They followed another pine road until they reached a hill opposite Bua District School. They tied the horses at the pine area then continued on foot to their destination.

When they reached Raviravi shop, it was dark, Toa and Waisale waited outside the fence while Esira went and checked the watchman. The watchman was still awake hence Esira cut a hole through the fence at the back, Esira managed to enter the shop however could not penetrate the inner parts of the shop without alerting the watchman. Hence they decided to assault the watchman and the wife (with a piece of timber 3 x 2) who were sleeping on the front porch of the shop. The watchman received head injury and so did the wife. The police arrived at the scene and conducted the investigation. The watchman and the wife were both hospitalized for head injuries.

The items they took:
1.	goat cutter - $20.00
2.	3 tin meet - $6.00
3.	1 carton of beer (stubbies) - $50.00
4.	1 carton of gin - $600.00
5.	1 carton of rum 40oz and 10 bottles of 40z – approximately - $1450.00
6.	1 26 oz rum – approximately - $60.00
7.	1 carton fanta juice - $43.00
8.	7 school bags – approximately - $90.00
9.	3 gross BH & 13 packets - $202.00
10.	two torches - $19.90
11.	3 tin peanuts - $7.00
12.	1 box lighter (gas) - $110.00
13.	1 box battery - $28.00
14.	1 box of small batteries - $15.00."

8. 	Court being convinced the plea to be unequivocal, all Accused persons were found guilty and convicted for the offence of robbery with violence.

9.	This Court is mindful that the particulars given in the information and the summary of facts are contradicting each other. Especially the stolen goods and the amount. The amount stated in the information is $4069.80. But in the summary of facts the amount admitted was $2711.

10.	Considering the relevant law, Section 293(1) (a) of the Penal Code prescribes a maximum sentence of imprisonment for life.

11.	Tariff to the offence of robbery with violence is spelled out in several cases.

12.	In Sesoni Volau v State (2006) HAA 96/06 Madam Shameem J decided 5 years as tariff.

13.	In State v Maikeli Rawaqa & Segran Murti (2008) HAC 042/04 Justice Goundar, determined, if force is used, the tariff should be 10 years.

14.	In Semisi Wainiqolo (2006) HAC 015/04 Justice Gates (as then) imposed 14 years imprisonment for an offence of robbery with violence.

15.	In Gustan F. Kean AAU 0048 of 2008 the Court of Appeal endorsed the tariff for offence is between 6 to 14 years imprisonment.

16.	Considering all above cases it can be observed the tariff is between 5 years to 14 years. It is noted in certain cases, considering the facts of relevant cases, Courts had decided sentence much higher or lower than the tariff because that was warranted by the facts of those cases.

17.	Considering the nature of the offence especially the injuries caused to the deceased watchman Joeli Racawa this Court commences the sentence at 10 years imprisonment. 

18.	Court considers the following aggravating factors.

a)	this is a well planned and executed robbery
b)	use of heavy violence on two old people
c)	the amount was considerably higher
d)	use of weapons
e)	it was a gang robbery

Considering all above aggravating factors the sentence is increased by 4 years. Now the sentence is 14 years imprisonment.

19.	Mitigating circumstances of the 1st Accused is considered as follows:

a)	married with 3 small children
b)	remorseful and offered apology to the victims
c)	co-operated with the police
d)	pleaded guilty before the trial begins
e)	some of the items were recovered
f)	period spent in remand
g)	looking after 70 years old parents.

Considering all above mitigating circumstances the Court reduces 5 years from the sentence now the sentence is 9 years imprisonment.

20.	 Court considers the mitigating circumstances of the 2nd and 3rd Accused persons.

a)	Both of them are first offenders
b)	Pleaded guilty
c)	Remorseful and seek the leniency of the Court
d)	Co-operated with the police in their investigation
e)	Some of the items were recovered
f)	Both the 2nd and 3rd are 22 years and 23 years old respectively.

Considering all mitigating circumstances the Court reduces 7 years, now the sentence is 7 years imprisonment.

21.	Section 18 (1) of the Sentencing & Penalties Decrees states as follows:

Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.

22.	Considering the above Section this Court determines non parole period as follows.

1st Accused - Esira Nawaqalevu - 7 years as non parole
2nd Accused - Waisale Moiere - 5 years as non parole
3rd Accused - Toa Turagacati - 5 years as non parole

Summary

23. 1st Accused - Esira Nawaqalevu is impose of 9 years imprisonment and he will not be entitled for parole for 7 years.

2nd Accused - Waisale Moiere is impose of 7 years imprisonment and he 
will not be entitled for parole for 5 years.

3rd Accused - Toa Turagacati is impose of 7 years imprisonment and he will not be entitled for parole for 5 years.

24. 30 days to appeal.

........................................
S. Thurairaja
JUDGE

At Labasa
5 July 2011