IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 73 of 2022

        STATE

            vs.

1.	SEVONAIA JALE
2.	INIA KAIDAWA JUNIOR

Counsel:			Ms. N. Ali for the State  
				Ms. L. Nabainivalu for the 1st Accused
				Ms. T. Kean for the 2nd Accused
				
Date of Sentence		28th April 2022

SENTENCE

1.	The 1st and 2nd Accused were charged with the following offence by the consolidated information filed by the Director of Public Prosecutions dated 30th March 2022:
COUNT ONE
Statement of Offence
AGGRAVATED ROBBERY: contrary to Section 311 (1) (a) of the Crimes Act, 2009.

Particulars of Offence
SEVONAIA JALE and INIA KAIDAWA JUNIOR on the 12th day of February, 2022 at Navua in the Central Division, in the company of each other, stole $35.00 cash and 1 x Wallet containing assorted cards from CHRISTIAN DEVASHISH DEO and immediately before stealing from CHRISTIAN DEVASHISH DEO, used force on him. 

2.	On 04th of April 2022, both of you being aware and well advised of the legal effects, did individually and separately plead guilty to the above count in the presence of your respective Counsel. This Court was satisfied that both of you fully comprehended the legal effects and that your pleas were voluntary and free from influence.

3.	The summary of facts read and explained on 20th of April, 2022 reveals that the offence of 'Aggravated Robbery' was committed on one Christain Deashish Deo, whilst going about his business as taxi driver on 12th February 2022.

4.	You admitted the following summary of facts;
THE FIRST ACCUSED: in this matter is Sevonaia Jale, who was 25 years old at the time of the offence, and is a Farmer who resides at Cagilaba, Navua.
THE SECOND ACCUSED: in this matter is Inia Kaidawa Junior, who was 19 years old at the time of the offence, and is a Farmer by profession who resides at Batinikia Road, Vakabalea, Navua.
THE COMPLAINANT: in this matter is CHRISTIAN DEVASHISH DEO – [Indian – male] who was 21 years old at the time of the offence, resides at Tadevo Navua, and is a Taxi Driver by profession.
RELATIONSHIP: there is no relationship between the complainant and the accused persons in this matter. However, Sevonaia Jale and Inia Kaidawa Junior are known to each other, Inia Kaidawa Junior is Sevonaia Jale’s uncle.

1.	On the 12th day of February, 2022 at around 10.00am, the Complainant started driving his taxi registration number LT 1909from Navua Town, Post Office base, which is situated beside Darshan’s Supermarket.
2.	On the above mentioned date at around 7.40pm, the complainant was at his taxi base at Navua Town, when he was approached by first and second accused persons. Both the accused persons got into the complainant’s taxi.
3.	The complainant said one of the accused was wearing blue coloured shirt, black ¾ pants with grey bucket has sat at the front passenger’s seat beside the complainant and the other accused person was wearing a red QAQA brand vest, brown ¾ pants and sunglass sat at the back passenger’s seat behind the driver.
4.	The first accused Sevonaia Jale was wearing a red QAQA brand vest, brown ¾ pants and sunglass was sitting behind complainant in his taxi. Whereas, the second accused Inia Kaidawa Junior was wearing blue coloured shirt with black ¾ pants, grey bucket hat and he was sitting at the front passenger’s seat beside the complainant.
5.	Both the accused persons namely Sevonaia Jale and Inia Kaidawa Junior asked the complainant to take them to Vakabalea, Navua. The complainant then drove from the Navua town to Vakabalea, Navua.
6.	As the complainant reached the Vakabalea, Navua, highway both the accused persons told the complainant to take them to Busa Farm Road in Navua. This is when the complainant turned his taxi and went into Busa Farm Road in Navua. This is when the complainant turned in taxi and went into Busa Farm Road. The complainant then drove for about 120 meters onto the Busa Farm Road when the accused persons again told the complainant to take a left turn into another feeder road.
7.	As the complainant turned his taxi onto another feeder road, the complainant discovered it was dark and isolated place and there were no houses nearby this road. Therefore, the complainant told the accused persons that he will not take them further into his road and will return back. At this time, the accused Sevonaia Jale grabbed the complainant’s neck tightly from behind using his hands and Inia Kaidawa Junior pulled the complainant’s front shirt pocket and took out the cash which was in the sum of $15.00.
8.	The complainant tried freeing himself and managed to press the horn. At this time Inia Kaidawa Junior got off the taxi and ran away, Sevonaia Jale remained seated inside the taxi and was pulling the complainant’s neck tightly using his hands.  
9.	In the process of freeing himself the complainant pressed the reverse gear and as a result the taxi moved backwards and went into the drain. As the taxi stopped in the drain Sevonaia Jale then got off from the taxi and came towards the complainant. Sevonaia Jale threatened the complainant to give him the money. At this time. The accused was not wearing his face mask.
10.	The rear part of the taxi was in the drain and the head lights of the taxi was on. The taxi could not move. Sevonaia Jale demanded money from the complainant and this time the complainant was afraid and could not do anything. The complainant then gave his wallet valued at $20.00, which contained $20.00 cash and assorted cards.
11.	 Sevonaia Jale then took the complainant’s wallet which contained $20.00 cash and fled the scene. The complainant also ran towards the main road and called his father on his mobile phone and informed him of the incident.
12.	The complainant then went to Navua Police Station and reported the matter. The complainant’s taxi sustained damages as a result of falling into the drain.
13.	The complainant was taken to hospital on the same night of the alleged incident and the complainant was medically examined by the doctor. The Medical Report dated 12th February, 2022, reflects in section D12, the complainant received bruises, reddish in colour, around his neck and on his right hand. 
14.	When Sevonaia Jale was demanding money from the complainant the complainant’s taxi’s headlights were on therefore there was sufficient light to clearly see the accused person’s face the complainant said.
15.	Inia Kaidawa Junior dishonestly appropriated $15.00 cash from the complainant. Whereas, Sevonaia Jale had dishonestly appropriated wallet valued at $20.00 and $20.00 cash from the complainant. Therefore, the total value of the complainant’s stolen property is $55.00.
16.	Sevonaia Jale and Inia Kaidawa Junior on the 12th day of February, 2022, in the company of each other, dishonestly appropriated $35.00 cash and a Wallet containing assorted cards from the complainant namely Christain Devashish Deo, and immediately before stealing from the complainant used force on him.
17.	After the matter was reported investigations were conducted. The Police officers from the Navua Police Station viewed the CCTV Footage at the Darshan’s Supermarket for identification of the accused persons.
18.	Upon viewing the CCTV footage the complainant on the 17th February 2022, positively identified the accused persons.
19.	On the 21st day of February, 2022, the complainant identified Sevonaia Jale in the identification parade conducted at the Navua Police Station.
20.	The witness namely Sainiana Ralagi who is the first accused person’s mother has stated that his son on the 12th February 2022, left home at about 1.00pm and was away from home for entire afternoon and had returned home on the 13th February, 2022. 
21.	The witness namely Letila Marama has stated that Sevonaia Jale is his brother in-law. She said that Sevonaia Jale on the 12th February, 2022, left home at about 1.00pm, and was wearing red vest, ¾ pants and black Nike strap bag. 
22.	The Police officer A/SGT 3379 Nitesh has stated that on the 17th February, 2022, he went to Darshan’s Supermarket with the complainant and viewed the CCTV footage. He said upon viewing the CCTV footage the complainant pointed out to the accused persons and that he identified the accused persons. SGT Nitesh said he positively identified Sevonaia Jale who is from Cagilaba Navua. He said he knows Sevonaia Jale for past 4 years as he is a habitual offender.
23.	The Police officer A/SGT uplifted the CCTV footage from the Darshan’s Supermarket and handed over to DC Samisoni. 
24.	Both the accused persons were arrested and were brought to the Navua Police Station.
25.	On 21st February, 2022, Sevonaia Jale was caution interviewed by D/C 3171 Saki. 
26.	In the caution interview, Sevonaia Jale had admitted from questions 33 to 78, that he knows Inia Kaidawa Junio as Inia is his uncle.
27.	In question 37 the Accused has admitted that he was wearing red Qaqa brand vest, brown ¾ pants, Sunglass and face mask. From question 43 to 51, the Accused admits that he and Inia Kaidawa Junior planned to rob a taxi driver. The accused admits that it was his idea. He said they looked for a taxi at the taxi stand. He admits before getting into the complainant’s taxi they tried to stop two other taxi driver and upon asking them to take them to Busa Farm road both the taxi drivers refused by stating that the road conditions were not good.
28.	In question 51, the Accused admits stopping the third taxi which was the complainant’s taxi. The accused admits that complainant’s taxi was grey in colour. He admits that complainant was young Indian male. He said that complainant agreed to take them to Busa Farm road upon their request.
29.	In question 56, the Accused admits that he told the complainant to take them to Busa Road Vakabalea, Navua. From question number 57 to 62 the accused admits during the reconstruction of scene that he boarded the complainant’s taxi near the Darshan’s Supermarket.
30.	In question number 63 to 69, Sevonaia Jale admits that he planned the robbery and Inia told the driver to go to Busa Farm Road. He admits that he sat behind the driver’s seat in the complainant’s taxi whilst Inia was sitting in front at the passenger’s seat beside the driver. The accused admitted that Inia planned the destination and Inia had told the driver to take the left turn from the Busa Farm Road. This shows that the accused persons had pre-planned the robbery and had intention to steal from the complainant.
31.	The accused admits in the question number 70, that when the taxi stopped at the Farm Road, he hold the driver from the back and grabbed him against the seat with both his hands. From question number 71 to 78, Sevonaia Jale admitted that whilst he grabbed the complainant’s neck from behind, Inia Kaidawa Junior took out money from the driver’s pocket. The accused admits, that driver slapped Inia’s hand and tried to free himself. He said the driver tapped the gear and the taxi reversed backwards into the farming area and that the taxi stopped after hitting with drain.
32.	The Accused further admitted in question 73 to 78, when the taxi stopped he came out of the taxi and told the driver to give him the money. He admits that when he demanded for money the complainant gave him his wallet which contained $30.00 cash. He admits cash was in six $5.00 notes.
33.	The second Accused Inia Kaidawa Junior was interviewed under caution on the 19th February 2022 by DC Joeli Koroi. 
34.	Inia Kaidawa Junior admitted from question number 57 to 96 that he and Sevonaia Jale in company of each other had robbed the complainant.
35.	In question 57, the Accused admits that he is related to Sevonaia Jale as he is Jale’s father’s cousin. This accused admits in question number 65 that Sevonaia Jale asked him if he wants to make money. In question number 67 the accused admits that Sevonaia Jale told him to rob the taxi driver. This shows that both the Accused had intention of permanently depriving the Complainant of his property.
36.	In the question number 68, Inia Kaidawa Junior admitted that Sevonaia Jale and he had already planned the robbery. He said the plan was that he will sit at the front passenger’s seat beside the taxi driver in the taxi and that Sevonaia Jale will sit at the back passenger’s seat behind the driver so that Sevonaia can tie the driver with his hands from back.
37.	The accused admits in the question and answer 69, that they approached two Taxi drivers before getting into the complainant’s taxi. However, the other two taxi drivers refused to take them due to bad road condition. He admits that complainant’s taxi was grey in colour.
38.	In the question number 76, the accused admits that he told the diver to take them to Busa Farm Road, Vakabalea, Navua.
39.	Inia Kaidawa Junior admits in the question number 93, that when the taxi driver stopped at Busa Road, Sevonaia Jale grabbed the taxi driver from behind by holding his neck, this is when he stole money from the taxi drivers shirt pocket and thereafter got off from the taxi and ran away from the scene.
40.	In the question number 94, Inia admitted that Sevonaia was fully grabbing the taxi driver by holding his neck and that he took the money from complainant’s pocket and ran away. He said he ran towards the highway and went straight to his home.
41.	The accused in the question and answer number 96 admitted that he took $15.00 cash from the complainant.
42.	The accused further admitted in the question number 102 that he refused to participate in the identification parade as he had already admitted robbing the taxi driver. In addition, the accused in the question and answer number 103 had apologized for his actions.
43.	Inia Kaidawa Junior was then formally charged by DC 5467 Timoci on the 19th February, 2022.
44.	The first accused Sevonaia Jale was charged on the 22nd February, 2022, by PC 5947 Parnesh.
45.	Sevonaia Jale have 6 active previous convictions recorded against him. (vide the Previous Conviction Record of the Accused,).     
46.	Inia Kaidawa Junior does not have any previous convictions adversely recorded against him, 
47.	On the day of the Plea, both the Accused persons pleaded Guilty to committing the offences 

5.	This Court is also satisfied that both of you did fully understand the nature of the charges and the consequences of so pleading guilty and that the summary of facts read covers and satisfies all the elements of the offences of Aggravated Robbery as charged which both of you admitted as having committed.

6.	In view of the aforesaid, this Court finds you the 1st Accused and the 2nd Accused separately and individually guilty of Aggravated Robbery as charged and convict both of you for the said offence. 

7.	The submissions on sentence and mitigation tendered by your Counsel and the State Counsel are comprehensive and helpful.

8.	In selecting a starting point of your sentence, this Courts is required to have regard to the objective seriousness of the offence. The maximum penalty prescribed for aggravated robbery is 20 years imprisonment. As for the tariff,  State v Tamani [2011] FJHC 725, considering Joji Seseu v State [2003] HAM043S/03S and Peniasi Lee v State [1993] AAU 3/92 (HAC 16/91) has determined  that sentences for  robbery  of  taxi drivers  range between 4 to 10 years imprisonment depending on force used or threatened.

9.	In this regard Gates J., (as he was then) in the case of Vilikesa HAA 64/04 by expounded that,“...violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport.... The risk of personal harm they take every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver, they will receive a lengthy term of imprisonment.”

10.	If I may consider the culpability and the harm factors of your offending, both of you entered the vehicle on the pretext of hiring the taxi of the Complainant, took him to an isolated pre-determined location grabbed the complainant’s neck tightly from behind and took his cash collation in utter disregard of his safety. You have acted in callous disregard of the fact that taxi drivers provide a vital service to the public. This is a serious offence against property of the complainant as well as the society. These offences appear to be prevalent and the number of young offenders brought before the courts for committing such offences is alarming and significant.  It has been the consistent judicial opinion that taxi drivers as transport service providers are vulnerable by virtue of their employment who are day in day out are exposed to risk of harm as they are compelled to be in possession of their collection in cash. You have hoodwinked an unsuspecting taxi driver, put him into fear of immediate serious harm which certainly would have caused anxiety and trauma to any victim in similar circumstances. This certainly would have been a horrific experience for the victim to be so manhandled by the two of you in this manner and the emotional trauma caused will not be forgotten in a hurry. 

11.	Ms. Kean, the Solicitor for the 2nd Accused in mitigation submitted that the culpability between the two accused should be apportioned on the premise that the 1st Accused is the dominant partner who masterminded this offending and the 2nd Accused was led by the older 1st Accused to contribute and participate in this crime.

12.	It is necessary that this submission be considered now. The two accused were charged on the basis of 'joint enterprise' based on the legal principle of ‘common intention to prosecute an unlawful purpose in conjunction with one another’ as embodied in Section 46 of the Crimes Act of 2009 in view of which ‘each of them is deemed to have committed the offence.'

13.	The 2nd Accused Inia Kaidawa Junior admits that he and the 1st Accused Sevonaia Jale planned the robbery together and they executed the robbery as planned and the 1st Accused grabbed the taxi driver from behind from his neck, the 2nd Accused took the money from complainant’s pocket and ran straight to his home. Thus, I find that the two accused have played their individual roles together after forming the common intention of prosecuting the unlawful purpose of robbing the victim. In fact, though younger in age, the 2nd Accused is the uncle of the 1st Accused in their relationship. This being so, I am unable to accept the submission that the 1st accused had played a dominant role or that the 2nd accused played second fiddle or that he participated due to the age dominance of the 1st accused. In these circumstances a role of dominance, could not, in fact, have been in existence as submitted. On the contrary, the two accused executed the plan, and the 2nd Accused had taken his part of the loot so to speak. Accordingly, the 1st and the 2nd accused have jointly committed the crime and they are equally culpable for the offence of 'Aggravated Robbery' and no question of apportionment arises in the circumstances this case.

14.	Upon considering the gravity and the objective seriousness of the offence, to my mind it is reasonable and just to pick 6 years’ imprisonment as the starting point of the sentences of both of you. However, the final sentence will depend on the mitigating and aggravating factors which I will now proceed to consider. 

15.	I will start with considering the aggravating factors. I observe the following aggravating circumstances of your offending is common to both of you:

a)	Around 7.40 p.m. both of you got into the complainant’s taxi and you were bold, undeterred and cunning in pretending to be hiring the taxi innocently when in fact it was the first step in executing your cruel criminal plan,
b)	This is a preplanned and pre-determined offending. 
c)	The complainant was a vulnerable person due to the nature of the work and services he renders and you manipulatively took advantage of the said vulnerability, 
d)	The complainant sustained injuries
e)	The taxi too was damaged,
f)	The items stolen were not recovered.

16.	I am inclined to add 2 years to the starting point for the above-mentioned aggravating factors bringing the interim sentence of both of you to 8 years’ imprisonment.

17.	As the mitigating factors are not the same, here onwards I will proceed to craft your sentences separately.  
The Sentence of the 1st Accused
18.	As determined above your interim sentence 8 years’ imprisonment.
Mitigating factors
19.	The personal circumstances and family background of the 1st Accused has little mitigatory value. However, you have cooperated with the police during investigations. Your counsel has informed court that you entered an early guilty plea and that you regret your actions on the day in question. The Court is mindful that early admission of guilt may be a mark of genuine remorse. But in view of the several previous convictions reported against you, you are certainly not a first-time offender. However so pleading guilty at a very early stage of these proceedings has saved time of court and resources. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of 3 years from your sentence which then brings your sentence down to five (5) years’ imprisonment.

Non-parole period

20.	Under section 18 (1) of the Sentencing and Penalties Act (as amended), a non-parole period will be imposed to act as a deterrent to the others and for the protection of the community as well. On the other hand, this court cannot ignore the fact that the accused whilst being punished should be accorded every opportunity to undergo rehabilitation. 

21.	Considering the above, I impose 3 years as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused and also meet the expectations of the community which is just in the circumstances of this case

22.	I also observe from the court records and the submissions in mitigation that the accused has been in remand since 22nd February 2022 up to date for 5 weeks. In the exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 02 months as a period of imprisonment already served. In view of the above, the final sentence will be 4 years and 10 months’ imprisonment. 

23.	Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed compels me to consider the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
Head Sentence
24.	Accordingly, I sentence you the 1st Accused for a period of 5 years’ imprisonment for the count of Aggravated Robbery as charged in the information. Moreover, you are not entitled to parole for 3 years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
Actual Period of the Sentence of the 1st Accused
25.	You have been in remand custody for this case for 2 months before the sentence as the Court did not grant you bail. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider 2 months as a period of imprisonment that you have already served.

26.	Accordingly, the actual period of the sentence is four (04) years and ten (10) months’ imprisonment with a non-parole period of two (02) years and ten (10) months.
The Sentence of the 2nd Accused
27.	As determined above the interim sentence being 8 years’ imprisonment, lets now consider the mitigating factors of the 2nd Accused. It was submitted that you;
a)	are truly remorseful and seeks forgiveness,
b)	co-operated with the police,
c)	were 18 years and 9 months of age at the time of the offending,
d)	are a young first-time offender,
e)	pleaded guilty at the outset on the first opportunity,
f)	have no previous convictions or pending cases.

28.	Your counsel also submitted that you attended school up to Form 7 and you were at the time of the offending farming. Further, that you due to a lapse of judgment joined the 1st Accused in this offending and you are willing and promise to reform and not to re-offend. You have accepted responsibility to your actions and did save the court’s time by pleading guilty at the earliest opportunity.

29.	For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of 5 years from your sentence which brings your sentence down to three (3) years’ imprisonment.

Suspending the sentence

30.	Your Counsel submitted that this is a fit matter for this Court to consider acting under section 26(2) of the Sentencing and Penalties. Act especially as you are a young offender. I am of the view that the firm undertaking and promise made to this court that you will rehabilitate and reform and you will lead a good life and may continue with your education are sufficient rounds to consider suspending your sentence in terms of the provisions of section 26(1) of the Sentencing and Penalties Act.

31.	 As per Section 26(2) of the Sentencing and Penalties Act, the discretion to suspend a sentence should only be exercised by a High Court where the custodial sentence does not exceed 3 years and if there be circumstance which are exceptional as stated in the Sentence Ruling in State v Aiding Zhang [2017] HAC 061.

32.	In DPP v Jolame Pita (1974) 20 FLR 5 at p.7:, Grant Actg. CJ., (as he was then) explained what special circumstances that warrant and justify the suspension of a sentence thus;
"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence as, for example, the misappropriation of a modest sum not involving a breach of trust, or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate."
33.	I am mindful that in State v Kotobalavu & Ors Cr Case No HAC43/1(Ltk), three young offenders were sentenced to 6 years imprisonment after they pleaded guilty to aggravated robbery and Madigan J, at p 6 opined that, “Violent robberies of transport providers (be they taxi, bus or van drivers) are not crimes that should result in non-custodial sentences, despite the youth or good prospects of the perpetrators...”.

34.	However, considering the dicta of Grant Actg. CJ., in DPP v Jolame Pita (supra), with the circumstances of this case especially the extreme youth or age of the 2nd Accused who was just 9 months passed 18 years in age and who he did not cause any physical harm to the complainant and that is a first-time offender with no other pending matters I am of view that this is a fit case to suspend the sentence as the final punishment does not exceed 3 years and been in remand for 2 months.  

35.	Thus, upon duly considering the material before me, I impose a sentence of 3 years’ imprisonment on the 2nd Accused and suspend the same for a period of 7 years.

36.	ORDERS
a)	The 1st Accused is sentenced to four (04) years and ten (10) months’ imprisonment with a non-parole period of two (02) years and ten (10) months. and
b)	The 2nd Accused is imposed with a sentenced of 3 years’ imprisonment for the offence which is suspended for 7 years.

37.	The effect and the consequences of any violation of a suspended term are explained to the 2nd Accused.

38.	You have 30 days to appeal to the Court of Appeal if you so desire.

………………………………………………….
						Justice K.M.G.H.Kulatunga
At Suva
28 April 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for 1st & 2nd Accused