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State v Yasa [2008] FJHC 105; HAC030.2005 (14 May 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS

CRIMINAL JURISDICTION
AT SUVA

Criminal Case No. HAC 030 of 2005

BETWEEN:

THE STATE

AND

NOA YASA

Counsel: Mr P. Bulamainaivalu & Mr. Fotofili for the State
Ms Marie Chan for Noa Yasa

Date of Sentencing: 14 May 2008

SENTENCE

1. NOA YASA, you have been convicted of one count of Burglary, contrary to section 299(a)(b) Penal Code Cap 17 and one count of Robbery With Violence, contrary to section 293(1) of the Penal Code Cap 17.
   
2. You conviction followed a trial lasting 5 days. During that trial, evidence were adduced that clearly showed to me the circumstances of the Burglary committed by you and others and the Robbery With Violence on Navin Chandra and his family in the early hours of 8 November 2004 at their home in 134 Ragg Avenue, Namadi Heights, Suva.
   
3. Whilst it is true that you were not the principal offender in both the charges proven against you in this trial, it is nevertheless without doubt that your role was a critical component in ensuring the joint criminal enterprise perpetrated by you and others in the nature of the Burglary and Robbery With Violence was successful. Who would know, if you had not participated, it may not have taken place at all.
   
4. The evidence in this trial that you with others entered the home of Navin Chandra at 134 Ragg Avenue after one of you had removed the security grill from one of the sliding windows in the sitting room. You yourself stole a purse with some loose change.
   
5. From your antecedent history, filed in Court by the prosecution it is evident that since 1984 you have had a busy life in criminal offending. For this sentence I am only able to consider those previous convictions in the last 10 years. From 1997 till today I note you have been convicted and imprisoned on offences including Burglary, Robbery With Violence, Larceny from Dwelling House and others. This does not augur well for your future.
   

Sentence

6. For the Burglary charge contrary to section 299(a)(b) of the Penal Code Cap 17, the liable sentence is life imprisonment with or without corporal punishment. This level of liable punishment indicates the serious of the charge you are convicted of.
   
7. The High Court of Fiji has in the following cases set the tariff for sentencing for the charge of Burglary as between 18 months to 3 years: Tomasi Turuturuvesi v The State [2002] HAA 086 of 2002; Mesake Ratabua v The State [2004] HAA 026 of 2004 and Charlton Lanyon v The State [2004] HAA 042 of 2005.
   
8. In this case I would take 3 years at the starting point of the sentence determination. This is proper given the level of damage inflicted, the time of the offence and nature of the intrusion involved.
   
9. Ms Chan in mitigation for Noa Yasa has submitted the following factors:
   
   1. You are married and have a young family, the youngest being 10 months old;
   2. You are casually employed as a grass cutter;
   3. You have joined the Youth Group in your area and are assisting the police
   4. You played a minor role in the offences committed.
      
10. For the above mitigating factors I would reduce the sentence by 9 months to 2 years 3 months .
    
11. The aggravating factors in this instance are as follows:
    
    • This was case of home invasion where the privacy of a family was violated in the most cowardly manner by you and others;
      
    • The total lack of respect shown by you towards the peoples property and personal enjoyment of their rights in their own home;
      
    • The level of planning indicated in your going to the scene of the crime with your face covered and armed with a screw driver.
      
12. For the above aggravating factors I would add 1 year to the sentence.
    
13. The sentence for Noa Yasa for the Burglary charge is 3 years 3 months.
    
14. For the Robbery With Violence contrary to section 293(1) of the Penal Code Cap 17 and considering the matters already discussed above, the proper starting point for sentence determination is 5 years imprisonment in the sentence tariff band of 4-7 years identified in Sakiusa Basa v The State [2006] FJCA 23
    
15. For the mitigating factors, I would reduce the sentence by 1 year.
    
16. For the aggravating factors identified above, I would add 1½ years.
    
17. The sentence for Noa Yasa for the Robbery With Violence charge, is 5½ years imprisonment, effective from today. This sentence is to be served concurrently to the sentence above.
    
18. Ms Chan has submitted that Noa Yasa had been in pre-trial custody for a total period of 8 months. If this is verified by the appropriate authorities, then the total period of pre-trial custody should be deducted from the sentence passed in this case.
    
19. In conclusion the total sentence to be served by Noa Yasa is 5½ years imprisonment effective from today.
    

Isikeli Mataitoga
JUDGE

At Suva
14 May 2008