State v Cava [2001] FJHC 14; Hac0007j.2000s (19 April 2001)

Fiji Islands - The State v Cava - Pacific Law Materials

IN THE HIGH COURT OI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 007 OF 2000S

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> STATE

-v-

ILAISA SOUSOU CAVA

Counsel:Mr F. Vosarogo for the State

Accused in Person

Hearing: 18th April 2001

Sentence: 19th April 2001

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SENTENCE

The Defendant has pleaded guilty to tfence of Robbery with Violence. The charge reads as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1) of the Penal Code, Cap. 17.

Particulars of Offence

NETANI CAKACAKA, ILAISA SOUSOU CAVA, LEDUA TIKOSAYA CAGILEVU and another on the 20th day of October 1999 at Na in the Central Division, ron, robbed DEEPAK LODHIA s/o DHIRU BAI the owner of TULJA JEWELLERS of assorted jewellery to the total value of $6,500.00 and immediately before such robbery threatened the said DEEPAK LODHIA s/o DHIRU BAI with cane knives.

The case against his co-defendants has been adjourned to another date for trial. The defendant is still at large and under bench warrant.

The facts of the case as outlined by the prosecution are as follows; On the 20th of October 1999 at 10.45am, the defendant with two others, entered the Tulja Jewellery Shop in Nausori, wearing masks and armed with cane knives. They had come to Nausori from Cunningham Road in a stolen motor-vehicle, had parked it adjacent to the shop, and entered the shop through the front door.

They threatened the shop assistants, two women, and the owner Deepak Lodhia. The assistants were taken t back of the shop where there is an office. The defendant, ant, with the others, then broke the show glass in the shop and put assorted jewellery into a bag. The defendant was unable to leave the shop by the door, and he with others then broke the window glass of the shop and left in the vehicle parked outside.

The jewellery taken was valued at $6,500. No one was injured, although whilst in the shop, the robbers had wielded their cane knives at the shop assistants and the owner.

The defendant was apprehended on 6th November 1999, and he csed to the commission of the offence, to the police. He was charged on the 7th of November mber and remanded until 18th November 1999, when he was granted bail by the Suva Magistrates Court.

The defendant’s antecedent history shows that he is 20 years old, and is unemployed. His father died in 1990, and he now lives with his mother and stepfather, at Nadonumai, Delainavesi. He was educated to Form 5 level and left school because he did not have the means to continue.

His previous convictions show that he was convicted of Restaurant Breakid Larceny in 1998, of Drunk Disorderly in 1998, of Unlawful Use of Motor Vehicle in 1999, o99, of Larceny and Driving Vehicle in Contravention of 3rd Party Risks, also in 1999. On 27th February 2001, he was convicted of Office Breaking Entry and Larceny and sentenced to three years imprisonment. He is currently serving that sentence.

In mitigation, the defendant said that he was 19 years old that he had been brought up by his grandmother after his father’s deae expressed remorse for ther the commission of the offence, and said that he was unlikely to rehabilitate in prison. He asked for leniency.

I asked State Counsel to provide me with authorities on sentencing fbbery with Violence, and gave him time to find them. It appears to me that a guideline judg judgment for offences of Robbery with Violence might be of assistance to the Magistrates court, and the High Court in approaching sentencing. These guidelines are relevant only to cases of armed robbery. In line with sentencing practice in other countries, guidelines for armed robbery are different from robbery without weapons of, for instance, a handbag or a watch on the street.

England

Under section 8 of the Theft Act 1968, an offen robbery or of assault with intent to rob, has a maximum sentence of life imprisonment. In . In R -v- Turner (B.J) 61 Cr. App. R. 67, the Court of Appeal said that the normal sentence for anyone taking part in a bank robbery or the hold-up of a security van should be 15 years imprisonment, if firearms were carried. Previous good character is not a strong mitigating factor although repeated offenders should be sentenced more heavily than first offenders. For several robberies, the maximum sentence should not normally be more than 18 years unless there are exceptional circumstances.

In R -v- Driscoll 8 Cr. App. R(S) 121, the Court of Appeal held that where robbery was committed in the e of a burglary, a 15 year year prison term was justified for offences of robbery, aggravated burglary and causing grievous harm. The Court said that there was a need to protect elderly people living alone, who were increasingly selected by burglars for such attacks.

In R -v- Richardson and Others The Times February 10, sentences of 13 years, 12 years and 11 years youth custody for the defendants who were of p of previous good character, and who had taken part in a series of robberies on houses where the victims were asleep but were disturbed and attacked with knives, were held to be right in principle. Ewbank J said that robberies of this nature were so serious that a plea of youth or of previous good character was of little relevance, and that where the victims were old or very young, the sentence would be even longer.

Similarly long prison sentences were held to be proper in the robberies of small in Att-Gen’s References (No. 3 of 1990) 92 C 92 Cr. App. R.

New Zealand

The New Zealand Court of Appeal in R -v- Moananui[1983] NZCA 66; (1983) NZLR 537, after reviewing cases of armed robberies carried out in banks, shops and pand post offices, said that such cases attracted sentences of six to eight years imprisonment. Aggravated robberies in dwelling-houses which involved smaller members of victims but invariably resulted in a gross invasion of person privacy, attracted sentences of four to six years. A review of the cases showed that the use of weapons, the vulnerability of the victims, and the infliction of injuries increased the sentence. Lack of pre-meditation and minimal roles played by some offenders may mitigate the sentence.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Fiji

Casesrred to me by State Counselunsel are as follows:

1. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp; n>spab>pan lang=lang=EN-GB>Apenisa Ralulu -v- The State Crim. App. AAU009/1995S. The offender pleaded guio Robwith nce on three counts. He used a cane knife and pinch bar to r to threathreaten tten the victims in a supermarket. A total of $3750 was taken from the till. No injuries were caused. The Court of appeal confirmed a total sentence of 8 years imprisonment.

ass=Level1 stylestyle="margin-top: 1; margin-bottom: 1"> 2. & &&bsp;;&nspp;&nssp; &nbsp span lang=EN-GB>Maciu Bakani -v- The Stapan>

3. &nnbsp; &nnbsp; &nbp; &nbp; &nSuliasi Sivaro -v- The State Crim. App. No. AA/B of. Thender had robbed a security van of $48,72 threng the security offy officersicers with with kniv knives. Tes. They were masked. The sentence of 4 years imprisonment was upheld by the Court of Appeal.

4. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp; span lang=EN-GB>John Ryland -v- The State Crim. App. No. HAA 030 of 1999. The offender was sentenced tears sonme his plea of guilty. Tty. The rohe robbery was at a dwelling house at nigh night, and the owners of the house were assaulted. $1,470.00 was stolen. The Appellant had a previous conviction for a similar offence. The sentence was upheld, as was the activation of a suspended sentence of 9 months.

5. &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& span>Mosese Balacala -v- The State Crim. App. No. 29/2000. The Appellant was sentenced to 3 imprent o own plea of guilty. Hty. He hade had robb robbed a family shop of $112.00 whilst armed with a cane knife. The victim, a woman, was punched on the face and body. The offender was 19 years old and a first offender. The sentence was reduced by the High Court because of the offender’s youth, and plea of guilty, to 2 ½ years imprisonment.

6. &nbssp; &nsp; &nbbp;&nnbbsp; &nnbsp State -v- Marika Wasa Crim. Ap. 33/ The der was seed byMagiss Court to be bound over over to k to keep teep the pehe peace, ace, for robbing a shop owner of $200. He . He had held her by the hair and threatened to “cut her with a knife” in the shop. The High Court substituted the binding over with a suspended sentence of 18 months imprisonment.

In Joseva Lui and Others -v- The State Crim. Appea AAU0005/97S, the Fiji Court of Appeal, found on facts very similar to those in the case bese before me, that sentences of 8 and 9 years imprisonment were excessive and reduced them to 6 years, 7 years and 5 years and 9 months respectively for the three offenders. The offenders were armed with cane knives and a hammer, they entered a jeweller’s shop, no one was injured although the occupants of the shop were frightened, and the jewellery stolen was valued at $50,000. The jewellery was recovered, and the offenders pleaded guilty at the first opportunity in the Magistrates Court.

On the cases cited before the court in Lui (supra), the trend appeared to suggest that sentences ranged from two years ton years, with a sentence ofce of 9 years imprisonment being reduced to 7 years in Iliaseri Saqasaqa -v- The State Crim. App. No. 7 of 1999, where the offender had a long list of previous conviction, and where the offenders had been armed with a knife, a pinch bar and wire.

Reducing the sentences, saying that the sentencidge had not given sufficient credit for the guilty pleas and the expressed remorse, the Coue Court of Appeal said:

“If the meagre available evidence of sentencing levels for robbery wiolence is any guide, then in our view, those current levelsevels appear too low. As with most crimes, there are gradations of seriousness. A helpful summary with a review of sentencing patterns and a list of actual sentences can be found in the decision of the New Zealand Court of Appeal in R -v- Moananui (1983) NZLR.

The State Prosecution Service ought to be encouraged to prepare a data base along the lines of that fon the Moananui judgmjudgment for the guidance of Magistrates and Judges. It will be seen from the Moananui judgment that sentences for aggravated robbery in New Zealand rarely go below 4 years.

If as the learned Judge in the present case indicated, robbery with violence is becoming incrgly common in this country,ntry, then the courts ought to develop principled sentencing patterns for dealing with the problem.”

In Nasoni Tamani -v- The State Crim. Appeal No. AAU004 of 1998e Court of Appeal considered an appeal against a sentence once of 8 years imprisonment for armed robbery. The arms used included a firearm and a cane knife, and the robbery was of $3000 case from an ANZ Bank branch. There was no guilty plea, and the appellant himself had been armed with a cane knife. The appeal against the sentence was dismissed, the Court saying that the sentencing Judge had correctly considered the sentencing guidelines in Lui & Others -v- State (supra) and Moananui (supra).

Guidelines

Considering these authorities, the Fiji Court of Appeal clearly considers the New Zealand guidelines for Robbery wiolence to be of particular ular relevance for Fiji.

Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises robbed are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences, should be considered aggravating features.

The sentence may be reduced where the offender has no previous conons, has pleaded guilty and has expressed remorse.

This list of aggravating and mitigating features are by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case.

This Case

Applying the above principles to the present case, a sentence in the range of four to seven years is ariate. The shop which was rwas robbed was a jewellery shop, and the weapons used were cane knives which were wielded but not used.

I take into account the trauma which was undoubtedly suffered by the shop assts and the shop owner, as a result of the robbery. The fact facts of the case indicate that all persons were equally involved in the enterprise. Furthermore none of the jewellery was recovered.

I have also considered the mitigation advanced by the defendant, his lack of education, the fact that he has been unemployed and is still very young. I take into account his guilty plea, and the remorse he has expressed. I also disregard all but the most recent of his previous convictions (which is for Office Breaking Entering and Larceny) for the purpose of sentence.

This offence is a serious one, with a maximum statutory limit of life imprisonment. The offence is also pret in Fiji, and there is a ds a duty on the court to pass a sentence which reflects the gravity of such offending. It is of particular importance that the owner of shops which are vulnerable to armed attacks, be protected from them.

Taking all these matters into account, and after giving the defendant credit for his guilty plea, I senthim to five years imprisonment. The sentence he is currentlrently serving is three years imprisonment from February 2001. On the totality principle, I find that the total of 8 years imprisonment to be disproportionately long, and I order that the sentence of five years imprisonment be served concurrent to his present term of imprisonment.

Nazhat Shameem

JUDGE

At Suva

19th April 2001

Hac0007j.00s