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State v Waaqnivalu [2010] FJMC 50; Criminal Case 889 of 2008 (18 May 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 889 / 08

BETWEEN

THE STATE

AND

1. ASELAI WAAQNIVALU
2. ERONI VAQEWA

SENTENCE

1. You Aselai Waaqnivalu and Eroni Vaqewa are to be sentenced upon being found guilty to the charge of Robbery with violence contrary to section 293(1)(a) of the Penal Code.
   
2. The maximum sentence for robbery with violence is imprisonment for life. In this case I pick my starting point as 6 years.
   
3. On the 27th November 2008 you have robbed a taxi driver and have stolen $ 240 cash and a mobile phone valued $ 280. You have further used personal violence on the Taxi driver while committing this offence.
   
4. It was revealed that on the day of the incident you two have hired the taxi and have taken the driver to the round about at Regg Street to commit this offence. You, Aselai Waaqnivalu have punched him on his face and you, Eroni Vaqewa have tried to strangle him and have put a knife on the taxi driver's neck. You, Aselai Waaqnivalu have taken money from the taxi driver's pockets and have collected money kept in the car too. You, Eroni Vaqewa have asked for his wallet and when he said that he does not carry a wallet you have punched on his head from the back.
   
5. It appears that you two have assaulted the driver and acted in a violent manner for a considerable duration of time. Even after the driver got off from the taxi You, Eroni Vaqewa have punched him to fall on the ground.
   
6. The taxi driver said in evidence that he was frightened. He said after robbing him, you, Eroni Vaqewa have robbed a lady who came near the incident too.
   
7. It appears that you two have created terror in the mind of the taxi driver and those who were at the vicinity too. This type of violent actions committed on taxi drivers has become so prevalent and the courts have always looked at these offences in a serious manner. These violent actions invariably create an insecure environment for the taxi drivers to do their business peacefully.
   
8. Apart from punishing those who are involved in this type of violent actions the court has a duty to send a message to others in the society who are minded to indulge in this kind of behaviour about the consequences of violent acts.
   
9. In State V Rokonabete 2008 FJHC 226 while sentencing the accused Justice Gounder has stated that "The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ring leader in a group is an aggravating factor. If the victims are vulnerable such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of the items taken and the fact that an offence was committed whilst the offender was on bail."
   
10. In this case I have observed the following aggravating circumstances.
    
    1. The offence is a planned one.
       
    2. The taxi is hired to rob the driver and its thus committed on a person providing public transport
       
    100. Use of personal violence
         
    4. Use of an offensive weapon
       
    5. Creating terror in the minds of the public and specially creating a terror in the minds of the taxi drivers
       
    6. No property has been recovered.
       
    7. The prevalence of violent robberies in the society.
       
11. The prosecution informed court that You, Aselai Waaqnivalu have 2 previous convictions and You, Eroni Vaqewa have 12 previous convictions.
    
12. It does not seem that you have learnt lessons from your previous convictions and tried to correct yourselves. Further it does not seem that the previous convictions have deterred you from committing offences.
    
13. Thus for the aggravating circumstances I enhance the sentence by 12 months for both of you.
    
14. In State V Rokonabete 2008 FJHC 226 Justice Gounder stated that "the seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved."
    
15. In mitigation you, Aselai Waaqnivalu said that you are 21 years old. You said you seek courts forgiveness. You further said that you are the only one in the family and your mother is getting old.
    
16. The court has taken notice that you have only two previous convictions. Although the prosecution informed court that you have committed this offence during a suspended term it was not supported by any evidence. You have not said any compelling mitigatory factors apart from your personal circumstances. However for the mitigatory circumstances I reduce your sentence by six months.
    
17. You Eroni Vaqewa tendered a letter to court and apart from that you did not say any thing for mitigation. You have said in that letter that the court has neglected your request for legal representation. You have said on the first day of this case, that is on the 8th December 2008 that you will look for a lawyer. But after the first date you escaped from the custody and appeared in this case again only on 4th September 2009. During that time you did not retain a counsel. Again you have escaped from custody and were produced to court on the 09th October 2009. On the 29th December 2009 you informed court that you waive the right to counsel and said you want to change your plea. Accordingly you pleaded guilty. Later the court vacated the plea as it did not seem to be an unequivocal plea as you said you were told by the prosecution to plead guilty. Since you waived the right to counsel you have not made any request for legal representation and the court has not neglected any such request too.
    
18. You have said further in your letter that you do not have knowledge on law. It should be stated that you have 12 previous convictions apart from the pending cases and you are not a stranger to courts or to prisons. The law does not expect an ordinary person to be conversant with law like a defence counsel. Further you said that you did not understand the language used in courts. The clerks in the court always translate things if an accused does not understand English. But it should be stated that you have not indicated to court that you do not understand English at any time. Besides the Fijian clerks always explain things in Fiji even without a request by the accused.
    
19. Apart from the above complaints you have not said anything which can be considered as mitigatory circumstances.
    
20. Accordingly I impose six years and 6 months imprisonment on You Aselai Waaqnivalu and seven years imprisonment on you Eroni Vaqewa.
    
21. You, Aselai Waaqnivalu were in remand since the 8th March 2010 until this date for two months. You, Eroni Vaqewa were in remand since 09th October 2009 for seven months. I take into account the time you two have spent in the remand prison. I order that the time you two have spent in the remand prison should be deducted from each sentence.
    
22. Further I order that you two are eligible for parole after 60 months.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
18.05.2010.