State v Johnson [2010] FJHC 391; HAC120.2008 (10 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC120 of 2008

STATE

V

RAYMOND JOHNSON

Hearing: 23rd – 25th August 2010
Sentence: 10th September 2010

Counsel: Mr. L. Fotofili for State
Accused in person

SENTENCE

[1] Raymond Johnson, you stand convicted of robbery with violence and unlawful use of motor vehicle after a trial. You exercised your right to a trial and I do not hold that against you.

[2] The facts are that on 14 June 2008 at 3am you entered the home of the complainant with a group of men armed with a knife and a pinch bar. You threatened the complainant with the knife and demanded money. After stealing cash and properties you fled in the complainant's vehicle. The vehicle was found abandoned later on the same day.

[3] I bear in mind the principles of sentencing under the Sentencing and Penalties Decree 2009, which came into effect on 1 February 2010.

[4] The maximum penalty for robbery with violence under the Penal Code is a life imprisonment. The maximum penalty for unlawful use of motor vehicle is six months imprisonment.

[5] The current sentencing practices and guidelines for robbery with violence have been set out in cases such as State v. Basa Criminal Appeal No: AAU0024 of 2005 (24 March 2006); Wainiqolo v. The State [2006] FJCA 70; AAU0027.2006 (24 November 2006) and State v. Rokonabete & Ors. [2008] FJHC 226; HAC118.2007 (15 September 2008). These cases indicate the sentences for organized gang robberies range from 8 years to 14 years imprisonment.

[6] In Rokonabete (supra), this Court summarized the principles to be:

"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 ringleader 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 items taken and the fact that an offence was committed whilst the offender was on bail.

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."

[7] Home invasion robbery is a serious offence. People take shelter and security in their homes. Robberies in homes instill fear in the community. In this country people live in homes like prisons with iron grills and padlocks on windows and doors. Yet they get invaded by offenders who have no regard for the law and order.

[8] Home invasion robbery is too prevalent in our community and perpetrators of this offence must expect condign punishment. The court has a duty to protect the public by imposing punishment that will deter this kind of offending.

[9] You invaded the complainant's home at night with a group of men by breaking the burglar grills and the door. The evidence shows that you were the leader of the gang. You did all the talking while you were inside the complainant's house for about ten minutes.

[10] The complainant said he will never forget the incident. After the incident he migrated to New Zealand with his family.

[11] You are 39 years old and married. You have a long list of previous convictions in Fiji and in Australia for similar offences, since 1990. Even when I disregard the spent convictions, you are not entitled for credit for previous good character. By your past conduct you have deprived yourself of any mercy from the court.

[12] I take into account that you waited for two years for the trial. You were in remand for a short period. I treat the delay as a mitigating factor in your favour.

[13] I treat the presence of the following factors to have aggravated your offending:

1. The complainant was robbed in the security of his home.
   
2. A knife was used to threaten the complainant.
   
3. The offence was committed in a gang.
   
4. The stolen items have not been recovered.
   

[14] You did not use actual physical violence. You used threats of violence to commit the robbery. I use 8 years imprisonment as a starting point. I add 3 years to reflect the aggravating factors and reduce 1 year for the delay and the remand period and arrive at a term of 10 years imprisonment.

[15] I sentence you to 10 years imprisonment with a non-parole period of 7 years imprisonment for robbery with violence and 4 months imprisonment for unlawful use of motor vehicle, to be served concurrently.

[16] You may appeal to the Court of Appeal within 30 days.

Daniel Goundar
JUDGE

At Suva
10th September 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Accused in person