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Walili v The State [2004] FJHC 129; HAA0055,56,57.2004 (4 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NOS.: HAA0055, 56 AND 57 OF 2004

BETWEEN

JOSUA WALILI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – in Person
Mr. N. Lajendra – for State

Date of Hearing: 23rd July, 2004
Date of Judgment: 4th August, 2004

JUDGMENT

Background

The appellant pleaded guilty to 4 counts of robbery with violence, 2 counts of unlawful use of a motor vehicle and 2 counts of driving a motor vehicle without a driving licence.

Particulars of the Offending

The offences were alleged to have been committed between the 28th of April and the 19th of July, 2003.

In respect of Appeal 57 of 2004, it is said that in the early hours of the 28th of April, 2003 a 68 year old man and his 65 year old wife were at home asleep in their villa located in Pacific Harbour. The appellant and his accomplice broke into the home by removing some louver blades from one of the windows. They entered the victim’s bedroom. They were armed with cane knives. They were wearing balaclavas and gloves.

They woke up the victims, threatened them, demanded money and tied them up. They then stole approximately $18,000.00 worth of property. They demanded ignition keys to the victim’s Toyota motor vehicle and made off from the scene of the crime in that car. No property was recovered.

In respect of Appeal 55 of 2004, the appellant and one other gained entry to another home at Pacific Harbour late at night. They were again masked and carried with them cane knives as weapons.

Again they threatened the victims and demanded money. Again they tied them up. They stole some $1,750.00 worth of property. While taking the couples car they were confronted and then assaulted their victim. They fled the scene with their stolen property.

In respect of Appeal 56 of 2004, in the early hours of the 19th of July the appellant and his accomplice broke into the home of an elderly couple at Waidradra, Navua. Again they were armed with cane knives and they were masked. Again they threatened their elderly victims, demanded money from them before tying them up and leaving them on the floor. This was in the early hours of the morning. They ransacked the house and took $1,184.00 worth of property. They again demanded the keys to the victims motor vehicle and drove off in it. The vehicle had an accident, went off the road and landed in a drain. The appellant and his accomplice fled the scene.

Its clear when stealing the various motor vehicles and driving them they had no drivers licence. No property was recovered from any of these armed robberies.

The Appeal

The appellant was unrepresented. He was advised of his rights to representation and legal aid but declined these. He elected to proceed with the appeal in person. He had pre-filed a type written notice on the points of his appeal. He did not wish to address the Court further.

In his type written statement the appellant says that the 9 year sentence he received was harsh and excessive. He was concerned that not enough of a reduction was made to recognize his co-operation and guilty pleas.

He details his poor family background including the fact that he was continuously ill-treated and degraded by his step father. That he was compelled to leave school at the age of 10 while in class 5. That at 17 years old he started to live on the streets and off his wits. He says that this unfortunate background led him and his street friends into a life of hardship and crime.

He says he is now in his mid 20s. He wants to put his life of crime behind him and return to his family home at Beqa. He wants to have the opportunity of becoming a contributing member to his village life while undertaking subsistence farming.

The State filed helpful written submissions. Counsel points to my recent decision of Uluikadavu v The State, Criminal Appeal HAA0035 of 2004 and particularly page 5 of that judgment where I said:

Home invasions are a particularly traumatic intrusion into the lives of citizens. The most striking feature of these episodes is the sheer terror to its victims. They are set upon within the apparent safety of a private dwelling by complete strangers. These unjustified acts of terrorism by intruders within the home invade the family sanctuary and violate the sense of security that lies at the heart of each home. As such these acts not only affect the lives of their immediate victims but also instil fear in the whole community creating a siege like mentality.

Entry into dwellings at night and assaults upon occupants must draw stern sentences to reflect society’s attitude to such conduct. In sentencing offenders for home invasions the Courts have always recognized the sanctity of the home and have insisted that violence occurring in a person’s house is to be treated as an extreme aggravating factor calling for a higher sentence. At the very least the victim and society deserve the small comfort of knowing that while incarcerated these home invaders are not free to ply their miserable trade.

Home invasions by multiple accused deserve a starting point of between six to eight years imprisonment. This is only a starting point and will need to be adjusted by the application of appropriate, aggravating and mitigating circumstances.”

State’s counsel submits that the sentence was properly constructed. Took into account aggravating and mitigating features and was not harsh or excessive.

Decision

It is a sad reality of our society that many unfortunate people come from an impoverished, low educated and abused family background.

It is, however, equally true that not all of those unfortunates resort to a life of crime and continually seek to define their own existence solely by the misery they can wreck on the lives of others.

This appellant is a professional thief and home invader. It is clear from his pattern of offending that he targets the weak, frail and elderly in the early hours of the morning and in this spectacular display of bullying and thuggery demands and takes whatever he can lay his hands on.

Repeat recidivist offenders can only expect lengthier terms of imprisonment for their continued offending. The sentence meted out by the learned Magistrate was properly constructed. It was well balanced and took into account the totality principle. It was not harsh or excessive. Repetitive offending of this nature deserved condign separate punishment. Hopefully such a stern response will stop your offending and deter others from home invasion.

Conclusion

Appeal dismissed.

Gerard Winter
JUDGE

At Suva
4th August, 2004