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State v Rawaqa [2008] FJHC 32; HAC042.2004 (4 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

Criminal Case No : HAC 042 of 2004

BETWEEN:

THE STATE

AND:

MAIKELI RAWAQA
SEGRAN MURTI

Counsel: Mr. D. Toganivalu for the State
Both Accused in Person

Date of the Hearing: Friday 29th February, 2008
Date of Sentence: Tuesday 4th March, 2008

SENTENCE

[1] Maikeli and Segran you were convicted after a trial before three assessors who found you guilty of robbery with violence (Count 1) and unlawful use of motor vehicle (Count 2).

[2] You exercised your right to a trial and I will not take this against you.

[3] On 6th September 2004, you jointly participated with others in a house invasion robbery, which must have been a traumatic experience for the complainant and his family. The complainant, Kirit Kumar, is a married man with two children. He had migrated to New Zealand but later returned to Fiji to reside and do business here. He operated a grocery supermarket called Jays Supermarket in the Nausori town. He employed many workers. Segran was one of them.

[4] In the early hours of 6th September 2004, the complainant and his wife were woken up by three armed intruders in their bedroom. The intruders were armed with a cane knife and a kitchen knife. Maikeli was one of the intruders. They demanded the keys for the safe which was in the children’s bedroom. At first, the complainant took a sword out to defend himself. He was warned to put the sword away and he would not be harmed. Because of the fear of being harmed, the complainant co-operated with the intruders.

[5] The intruders stole cash, jewelries and mobile phones, to a total value of about $30,000.00. The stolen cash was sales made by the Jays Supermarket in that weekend. After emptying the safe, one of the intruders went outside and returned shortly after with information that there was another safe in the house. He asked for the keys to the other safe but the complainant insisted that the keys were left behind at the supermarket. The intruders were well versed with the setting of the complainant’s house. They knew where the light switches and the safes were. They tied the complainant and his wife with a cloth and took off in the complainant’s vehicle. The vehicle was later found abandoned in Vatuwaqa.

[6] The complainant managed to free himself and called the police and his employees. He noticed his house was not broken into and his guard dogs were locked up in the dog house.

[7] Some stolen items, such as, the mobile phones and two gold rings were recovered from Maikeli’s possession. The recovery of the items was involuntary and therefore the offender is not entitled for any credit for the recovery of these items.

[8] Maikeli you are 42 years old and married with four daughters. You reside at Namono Settlement, Kuku, Tailevu. You are unemployed. Your previous convictions are more than 10 years old and I disregard them. I treat you as a first offender and therefore you are entitled to credit for previous good character. Your personal circumstances and previous good character are the mitigating factors. You have spent approximately 365 days in custody while awaiting trial. I take the time spent in custody into account.

[9] Segran you are 34 years old and married with two young children. Your wife and children are financially depended on you. You have elderly parents, four brothers and a sister. Your education level is Class 8. By profession you are a carpenter. You left the complainant’s employment without any notice immediately after the robbery. You had inside information about the setting of the complainant’s home and the existing security measures by virtue of your employment at Jays Supermarket and you used that information in the planning of the robbery. You betrayed the trust of your employer which aggravates the offence. You were waiting outside when the intruders went inside the complainant’s house. You were the driver of the getaway vehicle.

[10] Segran you have a long list of previous convictions since 1992. Your last conviction was in December 2001 for an offence of robbery with violence. You received 18 months imprisonment for that offence. I disregard all your convictions which are more than 10 years old. However, you still do not qualify as a first offender deserving credit. You have spent 80 days in custody while awaiting trial. The only mitigating factors are your personal circumstances and your attempt to live a crime free life after committing the offence in this case. I note that you have not committed any other crime since 2004.

[11] Robbery with violence is considered a serious offence in Fiji because the maximum penalty for it is life imprisonment.

[12] In the case of Sakiusa Basa v State [2006] Cr. App. AAU 24/05, 24 March 2006, the Court of Appeal pointed out that the levels of sentences in robbery cases should be based on English authorities rather than those from New Zealand, as had been the previous practice, because the maximum penalty in England is also life imprisonment.

[13] In England the sentencing range is 13 – 16 years (10 – 12 years after a guilty plea) for robbery in the home involving physical violence. In this type of case, the starting point is justified mainly by the high level of violence, although it is clear that longer terms will be appropriate where extreme violence is used (see R v Driscoll [1986] 8 Cr. App. R(s) 121).

[14] The dominant factor in assessing seriousness of any types of robbery is the degree of force used or threatened. The fact that the robbery is committed in a home in itself is an aggravating factor.

[15] In this case, the complainant and his family were put at risk of serious harm by the use of knives to threaten or intimidate them. A knife was placed to the complainant’s neck at one stage to threaten him. Fortunately, the complainant co-operated with the intruders, thus, avoiding physical violence.

[16] Home invasion robberies are prevalent in Fiji. Conduct of this kind affects the sense of security for the whole community. A home provides privacy and safety to a person. The sanctity of the home must be recognized and respected.

[17] It is the duty of the courts to protect the public against any form of violence or threat of violence while they are in the safety of their homes. Let me emphasize that violence committed in a private home will not be tolerated and that violent intruders should expect to receive a severe sentence.

[18] Maikeli, after taking into account your personal circumstances, previous good character, the time spent in custody, age of the offence, the invasion of a private home by a group of men, the use of knives, and the value of stolen items, I sentence you to 8 years imprisonment for robbery with violence and 4 months imprisonment for unlawful use of motor vehicle, to be served concurrently. Your total sentence is 8 years imprisonment.

[19] Segran, after taking into account your personal circumstances, the age of offence, the time spent in custody, the breach of trust, the value of stolen items, the invasion of a private home by a group of men and the use of knives, I sentence you to 10 years imprisonment for robbery with violence and 4 months imprisonment for unlawful use of motor vehicle, to be served concurrently. Your total sentence is 10 years imprisonment.

[20] The individual sentences, in my view, reflect the total criminality involved.

[21] The disparity in the sentences is justified on the basis that Maikeli had served a longer time in custody while awaiting trial and that he had received credit for previous good character.

Daniel Goundar
JUDGE

At Suva
Tuesday 4th March, 2008

Solicitors:
Office of the Director of Public Prosecutions, Nausori for the State
Both Accused in Person