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State v Tuwaqa -Sentence [2012] FJHC 1190; HAC012B.2010S (29 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 012B OF 2010S

STATE

vs

JOSESE TUWAQA

Counsels: Mr. Y. Prasad for State
Accused in Person

Hearings: 18th and 19th June, 2012
Summing Up: 20th June, 2012
Judgment: 20th June, 2012
Sentence: 29th June, 2012

SENTENCE

1. In a judgment given on 20th June, 2012, the court found you guilty of violently robbing the complainant of $74,000 plus cash, and $6,000 plus cheques, on 7th September 2009, at Nausori in the Central Division, contrary to section 293(1)(b) of the Penal Code, Chapter 17. The court then convicted you on the above offence.

2. The facts were disturbing. You and your three friends, carefully planned the violently robbery of the complainant, who is a director of Lokia Shopping Centre, Nausori. On 7th September 2009, while he was going to his office, with the abovementioned cash and cheques, you and your friends violently attacked him with bottles, iron bars and knives. He dropped the money and cheques, while he was fleeing for his safety. You and your friend took the money and fled in a stolen get-away vehicle. The complainant, his staff and members of the public chased you and your friends towards Vunivivi hills. However, they only caught up with you, and recovered $24,000 cash you threw into the bush. Your friends fled, and were never apprehended.

3. I note you have 8 previous convictions in the last 10 years – four "Robbery with Violence"; One "Burglary"; one "Larceny in a Dwelling house"; one "Unlawful use of motor vehicle" and one "Damaging Property". However, it was noted that you only admitted four of the above previous convictions, that is, two "Robbery with Violence" in 2003 and 2004, the "Unlawful use of a motor vehicle" charge (2003) and the "Damaging Property" charge (2003). The prosecutor accepted your admissions. I have noted your antecedent report and the victim impact assessment report. I have also taken into account your verbal plea in mitigation, made on 27th June 2012. I have considered all the submissions made by you and the prosecution, in this matter.

4. Robbery with Violence carries a maximum sentence of life imprisonment. The tariff for the offence is a sentence between 6 to 15 years imprisonment: see State v Sakiusa Rokonabete & Others, Criminal Case No. 118 of 2007, High Court, Suva; Sakiusa Basa v The State, Criminal Appeal No. AAU 0024 of 2005, Fiji Court of Appeal; Semisi Waqiniqolo v The State, Criminal Appeal No. AAU 0027 of 2006, Fiji Court of Appeal; Baleinakeba v The State, Criminal Appeal No. HAA 008 of 2010, High Court, Lautoka. The actual sentence will depend on the aggravating and mitigating factors.

5. In this case, the aggravating factors were as follows:

(i) The violent robbery on the complainant was well planned, and well executed;
(ii) The level of violence used against the complainant was extremely serious. It involved throwing beer bottles at the complainant, and threatening him with knives and iron rods;
(iii) The robbery included the stealing of a person's motor vehicle, to be used, as the get-away vehicle, which they later abandoned in a damaged condition;
(iv) Over $50,000 stolen cash was unrecovered;
(v) The accused showed no remorse whatsoever during his plea in mitigation.

6. The mitigating factors were as follows:

(i) The accused is 38 years old, married with one daughter, aged 1 year old;
(ii) The accused was employed as a dock worker, earning $120 per week;
(iii) The accused's mother passed away while he was in custody;
(iv) The accused has been remanded in custody since 16th November, 2011 – a period of approximately 7 months 12 days.

7. I must also consider Part III of the Sentencing and Penalties Decree 2009, which concerned "Habitual Offenders". Pursuant to section 10(b) and 10(c) of the Sentencing and Penalties Decree 2009, I would say that the accused's offending in this case falls within the ambit of section 10(b) and 10(c) of the above Decree. The accused admitted two previous convictions for "robbery with violence" [i.e. Files No. 28/10 and 26/03]. In both convictions in 2003, he received two sentences of 5 years imprisonment. Six years later, in this case, he committed another "robbery with violence", for which he is about to be sentenced. The accused is therefore a threat to the community, and pursuant to section 11 of the Sentencing and Penalties Decree 2009, I classify him as a "habitual offender".

8. In sentencing the accused, who I label as a "habitual offender", I start with 10 years imprisonment. I increase it by 6 years for the aggravating factors to 16 years imprisonment. I decrease the same by 3 years, for the mitigating factors, to 13 years imprisonment. To protect the community from you, I sentence you to 13 years imprisonment, with a non-parole period of 11 years. I order so accordingly.

Salesi Temo
JUDGE

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