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State v Tuimereke [2011] FJHC 738; HAC193.2010 (4 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 193 OF 2010
CRIMINAL CASE NO.: HAC 194 OF 2010

BETWEEN:

THE STATE

AND:

WAISAKE TUIMEREKE

Counsel: Ms. T. Leweni for the State
Ms. N. Nawasaitoga for Accused

Date of Sentence: 04th November 2011

SENTENCE

1. In HAC 193 of 2010 Waisake Tuimereke is charged for Robbery with Violence together with 3 others. The charge sheet reads as follows:
   

" FIRST COUNT
Statement of Offence

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

Particulars of Offence

WAISAKE TUIMEREKE, WAISEA SOATA, ISIMELI WAKANIYASI & KAMINIELI QASEVAKATINI on the 4th day of September 2009 at Nasinu in the Central Division, robbed one MARICA KUBUNAMECA of wrist watch valued at $75.00, two mobile phones valued at $60.00, ladies purse valued at $8.00 and cash of $290.00, all to the total value of $433.00, the property of MARICA KUBUNAMECA.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

WAISAKE TUIMEREKE, WAISEA SOATA, ISIMELI WAKANIYASI & KAMINIELI QASEVAKATINI with 3 others on the 4th day of September 2009 at Nasinu in the Central Division, robbed one PRATIMA DEVI of Company cash of $1,500.00 the property of PAFCO COMPANY.

THIRD COUNT
Statement of Offence

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

Particulars of Offence

WAISAKE TUIMEREKE, WAISEA SOATA, ISIMELI WAKANIYASI & KAMINIELI QASEVAKATINI on the 4th day of September 2009 at Nasinu in the Central Division, robbed one ROSHNI DEVI of $560.00 cash and personal documents, the property of ROSHNI DEVI and immediately before such robbery did use personal violence to the said ROSHNI DEVI."

2. When the case was called Waisake Tuimereke pleaded guilty to all 3 Counts.
   
3. In HAC 194 of 2010 Waisake Tuimereke is charged with another person for Robbery with Violence. The charge sheet reads as follows:
   

"Statement of Offence

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

WAISAKE TUIMEREKE with ISIMELI WAKANIYASI on the 23rd day of August 2009 at Nasinu in the Central Division, robbed one ATISH NEWAL of $500.00 cash, one Mangal sutra valued at $1700.00, gold bracelets valued at $600.00, one pair of earring valued at $400.00, gold chains valued at $800.00, one Olympia-brand camera valued at $100.00, one 1200 Nokia-brand mobile phone valued at $59.00, and two Digicel Motorolla mobile phones valued at $109.00, all to the total value of $4,268.00 the said properties of ATISH NEWAL."

4. The Court was informed that the Accused is a serving prisoner. When checked it was found he had been sentenced to 15 years imprisonment in other cases.
   
5. Considering the nature of the offence and sentences I decided to pass one sentence.
   
6. In HAC 193 of 2010 Waisake Tuimereke had admitted the summary of facts. State submitted the following summary of facts.
   

Count 1: Robbery with Violence

In executing their plan to rob Pafco, the accused person and other Fijian males entered the Pafco building where each person had a specific role to play. The driver of getaway vehicle to be used by the accused and others remained in the vehicle. The accused entered the building and remained at the bottom floor standing guard. Another person stood guard on the stairs within the building whilst another two entered the room in which Marica Kubunavanua was in. The two Fijian males that entered the room were holding empty beer bottles and a kitchen knife. One of the two told the said Marica Kubunavanua not to shout and pointed the knife at her. They robbed the said Marica Kubunavanua of a wrist watch valued at $75.00, two mobile phones valued at $60.00, ladies purse valued at $8.00 and cash of $290.00 all to the total value of $433.00. The above items were contained in Marica Kubunavanua's black bag and the same is the property of the said Marica Kubunavanua.

Count 2: Robbery with Violence

Whilst still in the same building, the two Fijian males that entered the Pafco building also grabbed the hand of one Pratima Devi when they entered the building. One of the Fijian males told her to keep quite whilst being armed with an empty bottle. There after they robbed the said Pratima Devi of $1,500 cash the property of Pafco Company.

Count 3: Robbery with Violence

Whilst still in the same building, the two Fijian males that entered the Pafco building also threatened to kill one Roshni Devi with a kitchen knife if she shouted. Thereafter they began opening drawers before robbing the said Roshni Devi of $500.00 and other personal documents belonging to the said Roshni Devi which was contained in her black purse.

7. The Accused pleaded guilty to all 3 Counts at the very beginning of the case. Considering the plea to be unequivocal he was convicted on all 3 Counts as charged.
   
8. The Accused Waisake Tuimereke pleaded guilty to the charge in HAC 194 of 2010. He admitted the summary of facts. State filed the following summary of facts.
   

On the 23rd day of August 2009, Waisake Tuimereke [hereinafter the "accused person"] and another had conceived a plan to rob an Indian family that resided at Lot 57 Vesivesi Road, Kinoya [hereinafter "PAFCO"] located in the industrial area of Laucala Beach Estate.

In executing their plan to rob the above mentioned house, the accused person and another entered the house situated at Lot 57 Vesivesi Road, Kinoya. At the time one Atish Lal [hereinafter the "complainant"] was asleep in his room whilst his mother was asleep in another room. The complainant was awoken by the sound of breaking glass immediately after the complainant heard his mother screaming. He came out of his bedroom to investigate and found the accused person and another standing in his mother's bedroom demanding money from her.

The accused person and another then focused their attention on the complainant where they demanded money from him. The complainant informed them that he did not have enough money. The accused person and another then robbed the complainant by taking $500.00 cash, one Mangal sutra valued at $1,700, gold bracelets valued at $600.00, one pair of earring valued at $400.00, gold chains valued at $800.00, one Olympia-brand camera valued at $100.00, one Nokia brand mobile phone valued at $59.00, two Digicel Motorolla mobile phones valued at $109.00, all to the total value of $4,268.00. The accused person then struck the complainant on the right side of his neck with a screw driver and fled the scene. The complainant was medically examined and annexed and marked at "WT1" is the medical report of the complainant.

9. Considering the plea to be unequivocal this Court convicted the Accused Waisake Tuimereke as charged.
   
10. In both cases the Accused Waisake Tuimereke is charged under section 293 (1) (a) of the Penal Code.
    
11. Section 293 (1) of the Penal Code states as follows:
    

"Any person who –

(a) Being armed with any offensive weapon or instrument, or being together with one other person or more, robs or assaults with intent to rob, any person; or

(b) Robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment."

12. According to section 293 (1) the maximum sentence prescribed is imprisonment for life.
    
13. Tariff for the offence of Robbery with Violence was discussed in many cases.
    
14. Recently Supreme Court approved 8 to 14 years imposed as tariff in Guston Frederick Kean vs The State 2011 (FJSC) 11 (12 August 2011).
    
15. Considering the nature of the offence in the 1st, 2nd and 3rd Count of HAC 193/2010 I commence your sentence at 10 years imprisonment for each Count.
    
16. Considering the nature of the offence in HAC 194 of 2010 I commence your sentence at 10 years imprisonment.
    
17. Now I consider the aggravating factors.
    
    • (i) In both incident it was well planned executed.
      
    • (ii) You showed absolute disregard to the property and privacy of others especially women at those places.
      

Considering above aggravating factors I increase your sentence by 2 years. Now your sentence is 12 years on each Count in HAC 193 of 2010 and HAC 194 of 2010.

18. Mitigating circumstances are as follows:
    
    • (i) You are 23 years old.
      
    • (ii) You have pleaded guilty at very early stage of the trial.
      
    • (iii) You claim you have a 4 years old child through your defector partner.
      

Considering the mitigating circumstances I reduce 2 years from your sentence. Now your sentence is 10 years imprisonment.

19. Your Counsel move the Court to consider totality principle.
    
20. Totality principle is considered in Tukoli Visawaqa v The State (2003) FJHC 138; HAA00021J.2003B. (23 September 2003) Justice Pathik stated as follows:
    

The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the "one transaction rule" and the "totality principle" (Thomas: Principles of Sentencing 2nd Ed. P. 53). It does not mean that consecutive sentences cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of aggravating features (Regina v. Johnson (Thomas). The times 22.5.95).

The totality principle has been expressed by Thomas in his Principles of Sentencing 2nd Ed at p. 56 as follows:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentence, to review the aggregate sentence and consider whether the aggregate is just and appropriate."

21. In Mill v The Queen (1988) CLR 59, Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing stating;
    

"The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate"."

22. Section 17 of the Sentencing and Penalties Decree provides as follows:
    

"If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them."

23. It is submitted by you and your Counsel that you are serving a 15 years sentence for other crimes that you are convicted already. According to your submission that you will be in the prison till 2026.
    
24. I impose the following sentence.
    

HAC 193 of 2010 – Count 1 – 10 years imprisonment.

Count 2 – 10 years imprisonment.

Count 3 – 10 years imprisonment.

HAC 194 of 2010 – 10 years imprisonment.

Considering all circumstances I order all the above sentences to be implemented concurrently.

25. Considering Section 18 (1) of the Sentencing and Penalties Decree I impose 8 ½ years as non parole period.
    
26. Considering Section 17 of the Sentencing and Penalties Decree and the totality principle I order these sentences to be implemented from today.
    
27. 30 days to appeal to Court of Appeal.
    

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for the 1st Accused