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State v Dromudole [2008] FJHC 308; HAC041.2008 (7 November 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 041 OF 2008

THE STATE

V

AKUILA DROMUDOLE
FELXI VUSONITOKALAU
ALIFERETI TOKONA
IRIMAIA RATUNARUKUTABU
VILIMONI SAUMAKI

Mr. P. Bulamainaivalu for the State
All accused in Person

Date of Sentence: 7 November 2008

SENTENCE

1 Akuila Dromudole, Felix Vusonitokalau, Alifereti Tokona, Irimaia Ratunarukutabua and Vilimoni Saumaki, you were all charged with two counts of robbery with violence, contrary to section 293(1)(b) of the Penal Code Cap 17 and one count of Unlawful Use of Motor Vehicle, contrary to section 292 of the Penal Code cap 17.

2 Following the unanimous verdict of guilty by the assessors in your trial, you were each found guilty as charged and convicted accordingly.

3 This is your sentence determination.

Facts

4 In the early hours of 6 December 2007at approximately 12.30 am, the accused persons raided the home of Chandra Chetty at Lot 9 Waidradra, Deuba. They were masked and carried a pinch bar and other weapons. Chandra Chetty and his wife were asleep, as were their two sons. Chandra Chetty was hit with an iron rod when he confronted the accused. His two sons were forced out of their bedrooms and locked in the bathroom. Chandra Chetty’s wife had her legs bound and her mouth taped.

5 The items stolen from robbery includes the following: 1 radio/CD player valued at $30, 1 Eveready Torch valued at $40, 1 Q&Q Quartz wrist watch valued at $100, 1 laptop computer valued at $3000, 1 Nokia Brand Mobile phone valued at $500, 1 Sony Digital camera valued at $3000, cask of $1200 and personal clothing belonging to Chandra Chetty’s sons. The total value of the items stolen was approximately $8300.

6 The accused persons also took Chandra Chetty’s vehicle Toyota Prado DD377 without his consent as their getway vehicle.

Mitigation

7 You have submitted the following personal circumstances as mitigation for the court to consider:

i) Akuila Dromudole:

He is serving a 14 year sentence and asks the court to pass sentence in this case that is concurrent.

ii) Felix Vusonitokalau:

He is married with two young children. He is currently serving a 4 year sentence passed in the Suva Magistrates Court 7 July 2008. He asks for sentence to be concurrent.

iii) Alifereti Tokona:

He is serving a 14year sentence that will finish in 2018.
He asks that his sentence in this case be concurrent.

iv) Irimaia Ratunarukutabua:

He is 37 years old, married with two young children. He is serving a 6 years sentence.

v) Vilimoni Saumaki

He looks after his younger brother and sister. Both parents have passed away. He requests the court to give him a second chance.

Aggravating Factors

8 This court considered the following as aggravating factors against each one of the accused:

• The level of planning required to commit the offence in this instance;

• The use of offensive weapons against the victims causing serious injury;

• This was the invasion of a home and the violation of the privacy of the victims family;

• The callous disregard demonstrated by the acts of the accused in the course of the commission of this offence that they were doing something that is unlawful.

Sentence

9 The maximum penalty prescribed by Parliament for the offence of robbery with violence, contrary to section 293(1))b) of the Penal Code Cap 17 is life imprisonment.

10 In determining the appropriate starting point of your sentence, I have carefully considered the following Supreme, Court of Appeal and High Court cases: Joji Waqasaqa v The State [2006]FJSC 6; Raymond Singh & Ors v The State [2004]FJCA 8; Naikelekelivesi v The State [2008] FJCA 11; State v Sheped & Others [2008] FJHC 82 and State v Sakiusa Rokonabete & Ors [2008]FJHC 226.

11 In the light of the above authorities and the particular facts of this case, I choose the starting point of the sentence in this case as 9 years imprisonment. This is appropriate given the prevalence of this type of offending and total disrespect shown the by the accused in this instance to terrorize a family in their home in the early hours of the morning and stole their property. The court must now signal clearly that this kind of behavior will almost always result in long term of imprisonment.

12 For the mitigations submitted I would reduce the sentence for Akuila Dromudoel, Alifereti Tokona and Irimaia Ratunarukutabua by 2 years to 7 years imprisonment. For Felix Vusonitokalau and Vilimoni Saumaki, given your family situations, I would reduce your sentences by 3 years imprisonment to 6 years imprisonment.

13 For the aggravating factors above, I would increase the sentence against Akuila Dromudole, Alifereti Tokona and Irimaia Ratunarukutabua by 3 years to 10 years imprisonment and against Felix Vusonitokalau and Vilimoni Saumaki to 9 years imprisonment.

Totality Principle

14 I am required as a matter of principle to take a step back and consider the totality of the aggregate sentence, where some of the accused are already serving sentences of imprisonment. To see if in the totality of the sentences that may be imposed, it may look wrong. Indeed section 28(4) of the Penal Code Cap 17 acknowledges this by allowing the sentencing court to pass sentence that may require partial concurrency and partial consecutive sentences.

15 I am aware that Akuila Dromudole and Alifereti Tokona are each currently serving 14 years imprisonment in HAC 118 of 2007. In that regard I have to consider the totality of the sentence to ensure that it reflects the totality of the criminal offending of these two accused person. With this in mind their sentences will be served as follows, 5 years imprisonment concurrent to their current sentence in HAC 118 of 2007 and 5 years to be consecutive: see Joji Waqasaqa (supra)

16 Irimaia Ratunarukutabua you are currently serving 6 years imprisonment for sentence passed against you on 8 September 2008, in HAC 046 of 2005. To best reflect the totality of your criminal offending and the need to ensure that you must serve some imprisonment for your involvement in this case, your sentence of 10 years will be served as follows 5 years to be concurrent to your sentence in HAC 046 of 2005 and 5 years imprisonment consecutive to that sentence.

17 Felix Vusonitokalau is already serving a sentence of four years imprisonment effective from 4 July 2008 in Suva Magistrates Court Criminal Case No: 2207 of 2004. You are sentenced to 9 years imprisonment with effect from today to be served concurrently with your other sentence.

18 Vilimoni Saumaki your sentence is 9 years imprisonment. He is not serving any sentence at the moment.

Parity in Sentences

19 Given that the effective sentence for Akuila Dromudole, Alifereti Tokona and Irimaia Ratunarukutabua is 5 years imprisonment for their part in this case, and the need to observe the parity principle in sentencing, the sentence against Vilimoni Saumaki will be reduced to 5 years imprisonment effective to day.

20 This sentence further addresses the principle of sentencing articulated by Lord Chief Justice Lane in R v. Bibi [1980] 1 WLR 1193, at page 1195

‘..sentencing courts must be particularly careful to examine each case to ensure, if a custodial sentence is necessary, that the sentence is as short as possible consistent only with duty to protect the interest of the public and deter criminals.’

21 In the case of Vilimoni Saumaki the sentence of 5 years imprisonment is proper in the context of this case. This court firmly believes that the sentence meets the public interest of deterrence to criminals and more importantly gives him an opportunity to have a second chance at life.

22 The above sentences relates to the two counts of robbery with violence charge, contrary to section 293(1)(b) of the Penal Code Cap 17.

23 With regard to the Unlawful Use of Motor Vehicle charge, each of the accused is sentenced to 3 months imprisonment. This will be concurrent to the sentence for the robbery with violence charges in this case.

Summary

24 In summary the sentences passed today against each accused person are:

1) Akuila Dromudole - 10 years imprisonment, of which 5 years concurrent to your sentence in HAC 118 of 2007 and 5 years imprisonment consecutive;

2) Felix Vusonitokalau – 9 years imprisonment effective from today, concurrent to your existing sentence of 4 years imprisonment in Suva Magistrate Court Criminal Case No: 2207 of 2004;

3) Alifereti Tokona – 10 years imprisonment, of which 5 years concurrent to your sentence in HAC 118 of 2007 and 5 years imprisonment to be consecutive;

4) Irimaia Ratunarukutabua – 10 years imprisonment, of which 5 years to be concurrent to your sentence in HAC 046 of 2005 and 5 years imprisonment consecutive to that sentence;

5) Vilimoni Saumaki – 5 years imprisonment effective from today.

Isikeli Mataitoga
JUDGE

At Suva
7 November 2008.