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State v Vakararawa [2008] FJHC 114; HAC047.2006 (3 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 047 OF 2006

BETWEEN:

THE STATE

AND:

JEKE VAKARARAWA

Counsel: Mr. A. Rayawa for the State
Mr. V. Vosarogo & Mr. T. Terere for the Accused

Date of Hearing: Monday 2nd June, 2008
Date of Sentence: Tuesday 3rd June, 2008

SENTENCE

[1] Jeke Vakararawa you stand convicted of robbery with violence following a trial before three assessors. You have spent 5 months in custody awaiting your trial.

[2] The facts are that on 24th April, 2006 you and your friends planned to rob an elderly couple, Michael Hamid Ali and Sue Gong Joo Ha who resided at Powell Crescent in Lami. Michael was 70 years old.

[3] At around 7.00 pm, you invaded the home of the complainants with three others. The complainants were in their living room when you entered their home. When the couple saw the intruders, Michael ran to his kitchen and got hold of a garden fork to defend himself and his wife. However, he was empowered by your co-accused, who punched him on the chest several times. Michael fell down on the floor. He was injured and was bleeding.

[4] You punched and tied up Sue Gong Joo Ha. You also blocked her mouth to prevent her from raising alarm. The house was ransacked and you and your accomplices took off with valuable items belonging to the complainants. A DVD player, camera, some cds and cash were stolen. Some items have been recovered, not with your assistance.

[5] The complainants were taken to the CWM Hospital. Michael received a cut on his head which required stitches. He also received several internal injuries to his skull and chest region. The couple was admitted to the hospital. The following day Michael was discharged from the hospital. Three days later he died at his home. You are not liable for Michael’s death. Thus I disregard the evidence led by the prosecution to prove you were responsible for Michael’s death.

[6] You are 20 years old. At the time of the offending you were 17 years of age. You are single and unemployed. Your personal circumstances are unfortunate. Your parents separated when you were 16 years old. Your have 3 sisters and 2 brothers. You are the second youngest in the family. You come from a poor background. You have attained up to Form 5 education at Lami Vocational School. You could not complete your studies due to financial hardship. After separation, your father had not to given you or your family any support.

[6] When you were a juvenile, you were convicted of office breaking and larceny in 2004. I disregard your previous conviction and treat you as a person with previous good character. You do not have any history of violence.

[7] Your counsel has submitted that you are remorseful and that you had a minimal role in the offence. It was submitted on your behalf that you were influenced by your peers who were older than you. You committed the offence in a joint enterprise. You are equally responsible for the use of violence by your co-accused.

[8] The mitigating factors are your young age, previous good character and personal circumstances.

[9] The maximum penalty for robbery with violence is life imprisonment. In sentencing offenders for robbery with violence, the English guidelines are relevant (Basa v State [2006] Cr. App. AAU 24/05, 24 March 2006).

[10] 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 (R v Driscoll [1986] 8 Cr. App. R(s) 121).

[11] 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 an occupied home in itself is an aggravating factor.

[12] In this case, an elderly couple was physically attacked in the safety of their own home by a group of men. These factors aggravate the offence. Actual physical violence was used to rob the couple. This kind of offence is becoming too prevalent in our community. Society cannot condone such conduct. Conduct of this kind affects the sense of security for the whole community. Such offences not only terrorize the victims in the safety of their homes but leaves behind a sense of fear in the community. Let me reiterate what I said in State v Rawaqa & Murti Criminal Case No. HAC 42 of 2004 in relation to home invasion robberies:

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.

[13] For the degree of violence used and for your role in the offence, I choose a term of 7 years as my starting point. I increase your sentence to 10 years to reflect the aggravating factors. I give substantial credit to your young age, previous good character and personal circumstances. I reduce your sentence to 6 ½ years. I further reduce your sentence by 6 months to reflect the time spent in custody while awaiting trial.

[14] Jeke Vakararawa, I sentence you to a term of 6 years imprisonment.

Daniel Goundar
JUDGE

At Suva
Tuesday 3rd June, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Legal Aid Commission, Government Buildings, Suva for the Accused