Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Tamani [2016] FJMC 102; Criminal Case 738.2015 (21 July 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 738/15

STATE

-v-

1. SENIVUGA TIKOISUVA TAMANI

2. JOJI TELAMAITOGA

3. ELENOA VOTABUA

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

AGGRAVATED ROBBERY: Contrary to Section 311(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SENIVUGA TIKOISUVA TAMANI, JOJI TALEMAITOGA AND ELENOA VOTABUA between 24th and 25th of February 2015 at Joe Singh Place, Rewa Street, Suva in the Central Division robbed Chand Pratap of his properties, namelyFJ$2700.00 cash, 1 x 22ct gold bracelet worth FJ$4800.00, 1 x gold bracelet worth FJ$150.00, 1 x Acer laptop worth FJ$1500.00, 1 x Fujifilm camera worth FJ$350.00, 2 x god chains worth FJ$700.00, and 1 x bottle or wine worth FJ$13.00, all to the total value of $10,213.00 and immediately before robbing Chand Pratap threatened to use force on Chand Pratap.

2] Summary of facts that you have admitted is reproduced as follows;

I) Later in the evening on 24th February 2015, Chand Pratap PW1, aged sixty four years, together with his six year old son, were asleep at their home situated at Joe Singh Place, Rewa Street, Suva. PW1 was suddenly awoken by the sound of someone knocking on his bedroom door and asking for Panadol. PW1 thought the person at the door to be the housemaid ElenoaVotabua (Accused 3) alias “Shally” and he got up to get panadol. PW1 tried switching on the bedroom lights as it was dark, however upon flipping the light switch the light didn’t turn on and the person at the door told PW1 that there had supposedly been on FEA power outage. PW1 managed to find a packet of panadol and when he opened the bedroom door, three masked persons confronted him.

II) Two of the said persons grabbed PW1 after which he was threatened to tell them where he kept the cash otherwise they would be harmed. Whilst two of the said persons began searching PW1’s room the third person took PW1’s son and shut him in the bathroom. PW1 was held down by one person who held a kitchen knife to his neck whilst another person searched for cash and other items. After about 10 minutes the three masked people left PW1’s home leaving him tied up with a bed sheet which was used to bind his hands and legs together. Before the said three persons departed, PW1 had asked them for some water which was given to him by one of the said three people. PW1 managed to free himself and his son came to him. PW1 made a check of his house and noted the following items had been stole when he reported the matter to the Police.

III) FJ$2700.00 cash, 1 x 22ct gold bracelet worth FJ$4800.00, 1 x gold bracelet worth FJ$150.00, 1 x Acer laptop worth FJ$1500.00, 1 x Fujifilm camera worth FJ$350.00, 2 x gold chains worth FJ%700.00 and 1 x bottle of wine worth FJ$13.00 (Total value – FJ$10,213.00).

IV) PW1 was medically examined on 25/2/15 where the specific medical findings indicated that he had sustained recent injuries namely, tenderness on the back of his ear, on his jaw, occipital region and at the back of his head (attached medical report of Chand Pratap dated 25/2/15 by Dr.LuisitoMadagag).

V) The matter was investigated and accused 3 was arrested and interviewed under caution on 7/4/15 after it was discovered that she had pawned a gold chan at Neil’s Pawn Shop in Suva on 13/3/15. Accused 2 cooperated with the Police and admitted under caution that on 23/2/15 she and accused 1 had planned to rob PW1.

VI) Accused 3 admitted that during the day of 24/2/15 she had mixed 4 sleeping pills into pW1’s drinking water in order to rob. PW1 however PW1 had noticed something had been mixed into his drinking water after tasting it and had become suspicious. Accused 3 admitted that later during the night of 24/2/15, she had opened the gate and the door to PW1’s home, allowing Accused 1 and his companions who were masked, to enter into PW1’s home to rob him. Accused 3 admitted that she received FJ$200.00 cash, 1 x 22ct gold bracelet, 1 x gold bracelet, 1 x gold chain and 1 x Fujifilm camera on her share from the robbery (attached Record of Interview of ElenoaVotabua dated 7/4/15).

VII) Accused 1 was later arrested and interviewed under caution on 8/4/15. Accused 1 admitted that he and Accused 3 had planned to rob PW1 that he had thereafter recruited Accused 2 and another to carry out. The robbery with the Accused 1 admitted to being the person who had asked PW1 for Panadol and had disguised his voice to sound like Accused 3 in order to get PW1 to open his bedroom door. Accused 1 admitted to being the person who had tied PW1 up with the bed sheet. Accused 1admitted that he received FJ$400.00 cash as his share from the robbery (attached record of interview of SenivugaTikoisuvaTamani dated 8/4/15).

VIII) Accused 2 was also arrested and interviewed under caution on 8/4/15. Accused 2 admitted that he had been one of the three persons who had threatened and robbed PW1 during the night of 24/2/15. Accused 2 admitted that he had stolen FJ$200.00 cash from PW1’s home but he had received FJ$400.00 cash as his share from the robbery (attached record of interview of JojiTalemaitoga dated 8/4/15).

IX) The following items were recovered by the Police from Accused only – 1 x 22ct gold bracelet worth FJ$4800.00, 1 x gold bracelet worth FJ$150.00, 1 x Fujifilm camera worth FJ$350.00, 2 x gold chains worth FJ$700.00 (total recovery – FJ$6000.00). There were nil recoveries made from Accused 1 and 2.

3] Maximum sentence for this offence is imprisonment for 20 years.

4] Referring to the tariff of this offence, Hon. Justice SalesiTemoin State v Nadavulevu [2015] FJHC 651; HAC046.2015S (10 September 2015) held that;

“Aggravated Robbery” is a serious offence, and it carries a maximum penalty of 20 years imprisonment (section 311 (1) of the Crimes Decree 2009). The tariff for a spate of robberies is a sentence between 10 to 16 years imprisonment: Nawalu v State, Criminal Appeal Case No. CAV 0012 of 2012, Supreme Court of Fiji. The tariff for a single case of robbery with violence is 8 to 16 years imprisonment: Wallace Wise v The State, Criminal Appeal Case No. CAV 0004 of 2015, Supreme Court of Fiji. The actual sentence will depend on the aggravating and mitigating factors”

5] I shall now proceed to consider your sentenceto be consistent with the tariff, mitigating factors and aggravating factors.

6] I pick 8 years imprisonment as the starting point for each accused.

7] Although no weapons have been used you have used violence against the complainant while committing the robbery. You have tied his hands and legs together using a bedsheet. As a result of this incident the complainant has received minor injuries. You have confined the son of the complainant in the washroom and departed the son from his father. Before you enter the room you have kept theelectricity powerdisconnected. This a premeditated robbery committed during the night while the complainant and his son were sleeping as summary of facts which you have admitted revealed. For these aggravating factors I increase the sentence by 2 years to reach 10 years for each accused.

8] You have tendered an early plea. Prosecution has submitted that you have no previous convictions. In addition to these mitigating factors your written mitigation submissions urge a non-custodial sentence for you are first young offenders. I reduce 2 years from the sentence to reach 8 years for the mitigating factors.

9] However this court is of the view that robbery is a serious offence that warrants a custodial sentence. In terms of Sec. 4(2) of the Sentencing and Penalties Decree 2009 it is not only the character of the offenders that has to be considered but the nature and the gravity of the offence, the offender’s culpability, should also be taken into account.

In the very recent judgement (24th April 2015) of Wallace Wise CAV 0004 of 2015, of the Supreme Court held that

“It is a fundamental requirement of a harmonious civilised and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders.”

This dictum is very relevant to the instant case as well.

The following purposes of sentencing will not be achieved if a non-custodial sentence is given for the offences of this nature.

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

[Section 4 of the Sentencing and Penalties Decree 2009]

Further the 2^nd accused in his mitigating submissions has said that he is 21 years old. Other accused have not mentioned their age. On the other hand leniency to the first offenders cannot be sought in serious offences. It is not an absolute rule for each and every case.However in this case these facts are taken into account by this court when the parole period is considered below.

It should also be noted that suspension of the sentence is not permissible when the sentence exceeds two years in terms of Sec. 26 of the Sentencing and Penalties Decree 2009.

Accordingly each accused is sentenced for 8 years imprisonment. I fix 5 years non-parole period for each accused.

30 days to appeal with leave to the Court of Appeal.

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

21/07/2016