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State v Pickering [2022] FJHC 174; HAC008.2022 (7 April 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 08 OF 2022

BETWEEN : STATE

AND : TABAIWALU JOHN PICKERING

Counsel : Ms E Thaggard for the State

Ms R Raj for the Accused

Date of Hearing : 05 April 2022

Date of Sentence : 07 April 2022

SENTENCE

[1] The Accused has pleaded guilty to a charge of aggravated robbery.

[2] The facts are that on 5 January 2022 the Accused was drinking at his uncle’s residence next to a resort in Savusavu when he ran out of alcohol. He had noy to buy more alce alcohol and so he decided to steal from the owner of the resort. The owner resided within the resort premises. She is a 75 year old American en.

[3] The Accused entered the victim’s home home by cutting the screen and removing the louver blades. The victim was asleep at the time. She got out of her bed to check when she heard her dogs barking. By that time the Accused was inside hiding in the kitchen. As the victim entered the kitchen the Accused struck the back of her head with a bottle which he had picked from the kitchen shelf. The victim fell to the floor. The Accused continued to punch her in the face, neck and head until she was unconscious. The Accused then ransacked the house and stole an electronic tablet and cash to a total value of $1800.00.

[4] The victim was found the next morning by her hotel staff who took her to the hospital. The victim sustained multiple injuries to her face and body consistent with blunt force trauma. She was kept at the hospital for neurological observations before being discharged.

[5] On 6 January 2022, the Accused went on a drinking spree until he was arrested in Labasa. The police recovered the electronic tablet and $800.00 cash from his possession. Under caution the Accused admitted the offence.

[6] The offence of aggravated robbery carries a maximum penalty of 20 years imprisonment. This was a home invasion robbery. The statutory aggravation is that the Accused used a bottle as a weapon to inflict physical injuries to the victim.

[7] In Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) the Supreme Court laid down the following guidelines for the offence of aggravated robbery:

[25] ...We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them.

[26] Sentences will be enhanced where additional aggravating factors are also present. Examples would be:

(i) offence committed during a home invasion.
(ii) in the middle of the night when victims might be at home asleep.
(iii) carried out with premeditation, or some planning.
(iv) committed with frightening circumstances, such as the

smashing of windows, damage to the house or property, or the robbers being masked.

(v) the weapons in their possession were used and inflicted

injuries to the occupants or anyone else in their way.

(vi) Injuries were caused which required hospital treatment,

stitching and the like, or which come close to being serious as here where the knife entered the skin very close to the eye.

(vii) the victims frightened were elderly or vulnerable persons

such as small children.

[27] It is our duty to make clear these type of offences will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders.

[8] I endorse the above guidelines. The main purposes of sentence in cases of aggravated robbery is denunciation and deterrence.

[9] The Accused is 28 years old. He is unemployed and sustains himself through farming. His young age, previous good character and early guilty plea are mitigating factors. His confession to police and his early guilty plea indicate he is remorseful. The guilty plea has also saved court’s time and resources.

[10] The aggravating factors are that the victim was an elderly woman and vulnerable. She was attacked in the safety of her home at night time. The invasion was planned. Physical violence was used to inflict bodily injuries to the victim.

[11] I pick 8 years imprisonment as my starting point and add 4 years to reflect the aggravating factors. I a total discount of 3 ye 3 years 9 months to reflect the mitigating factors and a further 3 months to reflect the remand period.

[12] The Accused is convicted and sentenced to 8 imprisonment with a non-paon-parole period of 6 years.

[13] Recovered stolen property is restored to the owner.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

Office of the Legal Aid Commission for the Accused