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State v Nimacere - Sentencing [1994] FJHC 54; HAC0016t.93s (25 May 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 16 OF 1993

THE STATE

v

ALIFERETI NIMACERE
and
LOTE RAIKABULA

Counsel: Mr. Hook for State
Both accused in person

Conviction: 23rd May 1994
Sentence: 25th May 1994

SENTENCING REMARKS OF PAIN J.

You have both been found guilty and appear now for sentence on a joint charge of Robbery with Violence. The relative seriousness of this offence can be gauged from the maximum penalty provided.

Despite what is now said by Mr. Nimacere, the evidence in this case was very strong and fully justified those convictions. The two of you and one other person selected Mr. & Mrs. Xies home as the target for your crime. You knocked on the front door and when it was opened, all three of you burst into the living room where the family was peacefully watching television. Your unidentified companion, who was armed with a piece of timber went straight to the defenceless Mr. Xie and struck him a blow on the side of the head. This caused a laceration above his left eyebrow with profuse bleeding. You, Nimacere, punched Mr. Xie's elder daughter Delia and pushed her sister Susanna to the floor when she tried to intervene. You Raikabula wrenched free the Hi Fi set. All three of you then left the house and you, Nimacere, took Mrs. Xies handbag as you were leaving. This whole episode must have been most frightening for the Xie family. Mr. Xie suffered some injury and property to the value of $960 was taken.

This was not spontaneous offending but a pre-determined criminal enterprise. It was deliberate and must have required some degree of planning and preparation. The house needed to be selected. The purpose, the mode of entry and the action to be taken upon entry must have been discussed.

Such criminal offending is a matter of grave concern in this community. It is a sad day when peaceful, law abiding citizens are fearful of being terrorised, attacked and robbed in their own homes. These robberies are an outrage to society. There prevalence calls for deterrent sentences. Perpetrators can expect lengthy sentences of imprisonment.

In considering the appropriate sentences in this case I have read considerable sentencing material on the topic and am guided by the Court of Appeal judgments in Timoci Bola & Rusiate Lutu v R Crim.App. 70 of 1983, Sepesa Paulo & Ors. v R Crim.Apps. 32, 48 & 51 of 1984 and Jona Saukilagi v The State Crim.App. 7 of 1987.

The sentences for violent house robberies are likely to range between 5 and 10 years imprisonment depending upon the degree of violence used and other relevant circumstances of the offence and the offender. The actual participation of the offender must also be considered and there may be cases that are exceptional in some way.

Mr. Nimacere, you played a prominent role in the commission of the offence. You were clearly a party to the assault on Mr. Xie and displayed aggression and violence yourself. You punched Delia Xie and pushed her sister Sussana to the floor when she tried to intervene. Fortunately neither suffered any serious injury. You also took Mrs. Xie's handbag which, with the contents had a total value of $60.00.

In my view your participation in this offence warrants a sentence of 8 years imprisonment. There are no mitigating factors to be taken into account in your favour. With your substantial criminal record which includes 1 conviction for robbery with violence and 14 convictions for offences involving house breaking or theft from dwellings you cannot expect any indulgence from the Court. The protection of the community must be considered. Your comments in Court today re-inforce that.

You are convicted and sentenced to 8 years imprisonment.

Mr. Raikabula, you also played a prominent role in the commission of the offence. You joined in this robbery and entered the house. You must have known that the third person carried a weapon and violence was likely, if not actually intended. After the occupants of the house had been assaulted you took the Hi Fi set valued at $900.00. Although you did not assault the occupants of the house you were clearly a party to and responsible for the violence that occurred. The case of Rusiate Lutu v R is clear authority for this.

However the case of Sepesa Paulo & Ors. v R says that sentences should, wherever possible, take into account the role played by each offender. When you entered the house, you must have been aware of the likely violence but you did not attack any of the occupants yourself. No actual personal violence was committed by you. You did, of course, take the substantial item of property and that cannot be overlooked.

Also, you do not have the same extensive criminal history as your co-offender. I note that there are only two dishonesty convictions where impersonent has been imposed and the longest sentence is only 12 months. As you pointed out, it is actually over 4 years since you had a dishonesty conviction.

In the circumstances your slightly lesser role in the commission of the offence and your considerably lesser criminal history are factors I can take into account in mitigating the sentence that would otherwise be imposed.

You are convicted and sentenced to 6 years imprisonment.

JUSTICE D.B. PAIN

HAC0016T.93S