State v Singh [2010] FJHC 535; HAC022.2010 (24 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 022 OF 2010

BETWEEN

STATE
PROSECUTION

AND

SAMUEL DONALD NILESHWAR SINGH
THE ACCUSED

Counsel: Ms. Fong, State Counsel – Counsel for State
Accused in person

Date of Trial/Plea: 12th November, 2010
Date of Hearing of Sentencing Submissions: 18th November, 2010
Date of Sentence: 24th November, 2010

RULING ON SENTENCE

1. You – Samuel Donald Nileshwar Singh - pleaded guilty to the charge of Robbery with violence punishable under Section 293 (1) (b) of the Penal Code.
   
2. Summary of facts, as submitted by the State, was admitted by you. Court, after being satisfied that your plea of guilt was voluntary and free from any influence, proceeded to accept the plea. Conviction was accordingly entered against you for the commission of the offence as contained in the information.
   
3. Facts reveal that you along with two others had entered into the house of Imran Ali around 9.30 p.m. on 26.10.2010. Imran Ali was away from home at the time. Nevertheless, you were allowed in as you were known to Ms Ronika Karan and Imran Ali. Ms Ronika was the wife of Imran Ali.
   
4. Ms Ronika Karan was with her small son attending to his school homework at the time.
   
5. You made enquires where Ms Ronika's husband was as another was holding a chopper at the neck of Ms Ronika. You made her to sit on the bed having forcefully taken her to the bedroom. You and the two other demanded money and jewellery from Ms Ronika, while one of your companions punched on her forehead.
   
6. Ms Ronika had no option but to reveal where her valuables were. You ransacked the house while the other two continued to attack Ms Ronika. You robbed cash, assorted jewelleries, ten mobile phones, three Oakley sunglasses, digital cameras, iPods, MP-3 players and a carry-bag, the total value of which was assessed at $21730.00.
   
7. You then had placed an adhesive cello-tape across her mouth and had her hands tied behind her back in order to restrain her in order to smoothly facilitate your acts of robbery. She was made to continue in the imbroglio until Imran Ali returned home at which of point of time you fled with all what you robbed.
   
8. It is in light of these admitted facts that you stand convicted for the offence of robbery with violence under Section 293 (1) (b) of the Penal Code and present yourself before me to receive your sentence.
   
9. The maximum sentence for the offence of robbery with violence attracted an imprisonment for life under the Penal Code at the discretion of court.
   
10. In passing the appropriate sentence on you, I bear in mind the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree (the Decree), which states:
    

'As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in [the General Sentencing Provisions of the Decree';

and, also the objectives and purposes of sentencing as stated in Section 4 of the Decree in considering the sentence against you.

11. In Sakiusa Basa vs. the State (Criminal Appeal AAU 24/2005), the Court of Appeal held that:
    

'Anyone who commits robbery with violence must expect an immediate sentence of imprisonment. This was a well planned attack carried out with weapons and a clear willingness to use violence .................. We do not interfere with the sentence ordered but we are constrained to add that the final sentence that the appellant has to serve is as short as it properly could be and we would not have interfered had a considerably longer term been ordered.'

(My emphasis)

12. In State vs Rokonobete and Others [2008] FJHC 226,court summarized the following as guiding principles in sentencing in cases involving robbery with violence. They are:
    

'From these authorities, the following principles emerge. 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.'

(Emphasis mine)

13. As recently as 09th of August, 2010, His Lordship Justice Madigan in State v Rasaqio [2010] FJHC 287; HAC 155/2007, observed that the normal range of sentence for robbery with violence is now 10 to 16 years in the High Court after trial having relied on State v Basa: AU0024/04, Wainiqolo v State: AAU0027/06 and State v Rokonabete: HAC 118/07 and imposed a term of 15 year-imprisonment on an accused for robbery with violence, who was also found guilty of murder, with a non-parole period of 11 years.

14. In light of the above, I will now proceed to consider appropriate sentence on you upon consideration of submissions made in person for mitigation. You submitted by way of a written plea following factors. They are:

(i) You are now 25years of age;

(ii) You are looking after your sick father;

(iii) You had been on remand for about 7-8 months for this case;

(iv) You are really remorseful and want to reform yourself; and,

15. Aggravating factors that need be considered in this case are:
(i) Turning the invitation into her home by Ms Ronika on account of her acquaintanceship with you into an invasion of her person;
(ii) Commission of the offences having been armed with a deadly weapon such as a chopper;
(iii) Physical violence used on a woman in the presence of a small child;
(iv) Psychological trauma that both Ms Ronika and the child were driven into;
(v) Acts of assault and restraint on Ms Ronika leaving her in horrible ordeal until her husband Ali returned home.
16. As shown above, on the strength of judicial authorities, the offence of robbery with violence now attracts a range of 10-16 years of imprisonment. I am satisfied, as sanctioned by Section 15(3) of the Decree, that a lesser sentence or an alternative sentence would not meet the objectives of sentencing in Section 4 of the Decree in this case. Facts and circumstances of the case instead justifiably persuade me to consider a severe term of imprisonment as the last resort.
17. Anyone's home is the place that should be felt secured and made free from any act of violence. You, with two of your companions, instilled fears of horror and carried-out your acts of robbery having misused your acquaintanceship with Ms Ronika and Ali. Your acts undoubtedly set a psychological trauma.
18. In the circumstances, I consider that the offence, for which you are convicted now, as very serious. I accordingly pick-up 10 years as the starting point and add 4 years to reflect aggravating factors and arrive at 14 years of imprisonment. I consider your guilty plea as a genuine display of your true remorse and give you a substantial reduction of 5 years and reach at 9 years of imprisonment. I further reduce 1 year to set-off your period on remand for 7 months.
19. I accordingly impose a term of 8 year imprisonment as your sentence.
20. You have had many previous convictions against you from 23.09.2005 to 29.07.2010 for some of which you have been given suspended sentences. The operation of the first suspended sentence was to have elapsed on 13.07.2011; and, the last was to have elapsed on 28.07.2015. This shows that you have had scant regard for the opportunities afforded by court for you to stay away from crime and reform yourself. Instead, you had committed this offence during the operative period of the first suspended term. (See Previous Convictions Report: CRO1/87395 of 16.11.2010)
21. In view of the foregoing, I act under Section 18(1) of the Decree and order that you shall not be eligible for parole until you serve the term of 8 years in imprisonment. The sentence is to be treated as having effected from 12th November, 2010, the date on which you tendered your plea of guilt.
PRIYANTHA NAWANA
JUDGE
HIGH COURT
LAUTOKA
24th NOVEMBER, 2010