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State v Chand [2012] FJMC 269; Crimnal Case 354.2008 (12 October 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 354/08

BETWEEN

THE STATE

AND

1. PREM CHAND (ALREADY DEALT WITH)
2. WILLIAM DRASUNA
3. KAMINIELI DONU ( ALREADY DEALT WITH)
4. TUPOU VUETAKI
5. SAULA LALAGAVESI
6. EMORI LAQAI
   

SENTENCE

1. You, William Drasuna, Tupou Vuetaki and Saula Lalagavesi are convicted upon being found guilty to one count of conspiracy to commit felony contrary to Section 385 of the Penal Code and another count of unlawful use of motor vehicle contrary to Section 292 of the Penal Code. You, Emori Laqai are convicted upon being found guilty to one count of conspiracy to commit felony contrary to Section 385 of the Penal Code.
   
2. The maximum punishment for conspiracy to commit felony is imprisonment for 7 years. The maximum punishment for unlawful use of motor vehicle is imprisonment for six months, or to a fine of one hundred dollars, or to both such imprisonment and such fine.
   
3. It was revealed that on the first day of May 2008 you conspired with others to rob a vehicle carrying wages of the workers at Dannum Garments Fiji Limited. On the 02nd may 2008 all of you got together and were in the process of carrying out the plan. You William Drasuna, Tupou Vuetaki and Saula Lalagavesi used a stolen motor vehicle for this mission. However the planned robbery was later aborted and all of you were arrested by the Police.
   
4. You have committed this offence whilst being members of a gang. Further it appears that you have had in possession a cane knife, masks, spikes and glows in the vehicle that all of you were travelling. I consider those as aggravating features.
   
5. You, William Drasuna tendered a written mitigation. You have stated that you are 37 years old and married with two children aged, 2 and 4 years. You are the sole breadwinner of the family. You have stated that if yo are sent to prison there will be no one to look after your family. You have further said that you have kept out of troubles and that you are not a threat to the community. I have considered the personal circumstances you have mentioned in your submissions. However you have not expressed any remorse in your mitigation.
   
6. In mitigation you, Tupou Vuetaki's counsel filed written submissions. You are 42 years old and married with 5 children and two grand children. You are employed at a private company. It was informed that you are good member of the society and that you still deny the commission of the offence. Your counsel asked for leniency and has informed that you have left life behind bars three years ago and vouch not to live that life again. Further a letter from the director of the company you work for was also tendered in mitigation.
   
7. You, Saula Lalagavesi tendered a written mitigation and it was informed that you are presently serving a total sentence of 6 years and 3 months. You have asked to consider the period you were in remand for this case. You have pleaded the Court to take into account the facts that no injuries occurred and no robbery was taken place. You have asked for leniency.
   
8. In mitigation you, Emori Laqai's Counsel tendered a written mitigation. You are 35 years old and married with two children aged 4 and 8 years. You work as a casual labourer. You are the sole breadwinner. It was further informed that you have tried to put aside your old life and reform to be a better and law abiding citizen. You counsel pleaded that a lenient sentence may be imposed on you.
   
9. You Willium Drasuna have 8 previous convictions.
   
10. The Prosecution informed that you, Tupou Vuetaki have 44 previous convictions. However you disputed the previous convictions after 2002. Later the Prosecution agreed to limit your previous convictions up to 2002 as the Prosecution could not confirm the disputed convictions within the time given to them. Accordingly I consider the conviction in 2002 as the last conviction.
    
11. You, Saula Lalgavesi admitted that you have 43 previous convictions.
    
12. You, Emori Laqai admitted that you have 24 previous convictions.
    
13. The Counsel for the Accused 4 and 6 submitted to Court that as per State v Prasad & Others [2011]FJHC218 the tariff for conspiracy is 18 months to 3 years. Further it was informed that tariff for unlawful use of motor vehicle is 3-4 months as per State V Timoci delana [2010] FJHC 22.
    
14. In this case I pick my starting point for the offence of conspiracy to commit felony as 18 months for each of you. For the aggravating features I enhance the sentence by 6 months. Having considered the time you were in remand, your personal circumstances and other mitigatory factors I reduce the sentences by 15 months.
    
15. I have considered the personal circumstances of each of you. Further I have taken in to account the fact that you are trying to keep away from troubles. It appears that you have tried to stay out of troubles for a considerable period of time. Yet it should be noted that the liability of a crime does not fade away with the time or with the subsequent good character of an offender although those can be considered as mitigatory factors. I have considered those factors to tailor the sentences.
    
16. However the act that you have conspired to commit is of very serious in nature. The Sentencing and Penalties Decree emphasizes the importance to impose sufficient punishment to offenders not only to punish them but also to deter others from committing similar offences and to signify that the Courts and the society denounce this type of actions. Thus I am of the view that the circumstances of this case do not warrant this Court to impose a suspended sentence on you.
    
17. Accordingly I impose 9 months imprisonment on the 2nd, 4th, 5th and 6th Accused for the offence of conspiracy to commit felony (2nd Count).
    
18. Having considered the facts of the case and the mitigatory circumstances I impose 3 months imprisonment for the offence of unlawful use of motor vehicle (3rd Count) on the 2nd, 4th and 5th Accused.
    
19. I order the sentences imposed for the 2nd count and the 3rd count to run concurrently in respect of the 2nd, 4th and 5th Accused.
    
20. Further I order this sentence imposed on the 5th Accused to run consecutive to the sentences currently served by the 5th Accused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
12.10.12