State v Singh [2010] FJHC 612; HAC035.2010 (24 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 035 0F 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 charges of Robbery with violence and unlawful use of a motor vehicle punishable respectively under Sections 293 (1) (b) and 292 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 offences as contained in the information.
   
3. Facts reveal that you along with three others had hired the seven seater passenger carrier van of the complainant to go to Saweni Beach. Upon arrival at the beach, one of your companions threatened the complainant with a knife and got him out of the van.
   
4. You then took the vehicle and drew it having put the complainant into the rear. One of your companions then extorted money and his personal belongings being $ 95.00 in cash and two mobile phones valued around $ 200.00.
   
5. The complainant was subsequently dropped off at Saweni; and, you drove the van to Lautoka. Your companion, in the meantime, ransacked the van and removed its accessories namely the car-stereo, the amplifier and the mobile phone charger, the total value of which was assessed to be around $350.00. You later abandoned the van on a street in Lautoka.
   
6. You were arrested on suspicion and interviewed under caution where you confessed to the offences of robbery with violence and for unlawful use of the motor-vehicle.
   
7. It is in light of these admitted facts that you stand convicted for the offences punishable under Sections 293 (1) (b) and 292 of the Penal Code and present yourself before me to receive your sentences.
   
8. The maximum sentence for the offence of robbery with violence attracted an imprisonment for life under the Penal Code at the discretion of court. Maximum sentence for unlawful use of a motor-vehicle is six-month imprisonment or to a fine of $100 or both.
   
9. In deciding on the sentence to be passed 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 sentences against you.

10. 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)

11. In State vs Rokonobete and Others [2008] FJHC 226, the following have been set-down as guiding principles for 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)

12. His Lordship Justice Goundar in giving judicial effect to the victim impact under Section 4 (2) of the Decree observed in State v Susu (Supra) that:
    

'The victims were vulnerable by virtue of their employments. They are always exposed to risk of harm because they provide services to the public and they are in possession of cash earnings. For these reasons, an attack on the public transport providers and employees of service stations must not be condoned. Such attacks must be denounced. Otherwise, the public will be deprived of essential services if the providers cease to operate these services because of fear of becoming victims of crime.

Fortunately, the victims were not physically injured. But being gagged and driven while in the boot of a vehicle must be a horrific experience for the victim. Also, being threatened with violence by a gang to hand over the property must be daunting to the victim. These experiences cannot be forgotten easily and the emotional impact that such experiences leave behind on the victim cannot be ignored by the court',

13. His Lordship Justice Gates (as he then was) expounded on the victim impact resultant from robbery on taxi-drivers, who stand in close relationship and similarly circumstanced to van-drivers as public transport providers, in State vs Charles Marvick. His Lordship adopted the pronouncement of Winter J. in Vilikesa v State [HAA 064/04;20.08.2004] which read:
    

'Violent and armed robberies of taxi-drivers are all 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 everyday by simply going about their business can only be ameliorated by harsh deterrent sentences that might instil in prospective muggers the knowledge that if they hurt or harm a taxi-driver, they will receive a lengthy term of imprisonment'

14. His Lordship Justice Gates reinforced the above ruling of Winter J. in the case of State v Patrick Fong [FJHC 722/05]as follows:
    

'Much has been said of attacks on taxi drivers. The court has concluded that the need for harsh deterrent sentences to protect taxi drivers, and the transport facility they provide for the public, far outweighs the personal mitigating circumstances of unthinking or alienated young men: Peni Raiwalui v The State (unreported) Suva Crim. App. No. HAA030.03S, 12 November 2003; Vilikesa Koroivuata v The State (unreported) Cr. App. HAA064.04S, 20 August 2004; State v Charles Marvick, (unreported) Suva Cr. Case No. HAC027.028.04S 19 October 2004.'

15. 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.

16. I will now proceed to consider appropriate sentences 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; and,

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

17. Aggravating factors that need be considered in this case are:
(i) You and your companion led the complainant to the belief that his engagement as service provider was for genuine business in the trade;
(ii) The use of knife to threaten the complainant with serious injuries;
(iii) Physical violence used on the complainant and the injuries caused on him;
(iv) The time of the commission of the offence being 1.00 a.m. in the day when the complainant was engaged in his trade at great risks;
(v) Psychological trauma that the complainant was driven into; and,
(vi) Exposure of the complainant to greater danger when he was left alone in the thick of the night.
18. 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 set-out in Section 4 of the Decree. Facts and circumstances of the case, instead, justifiably persuade me to consider a severe term of imprisonment as the last resort.
19. Anyone's right to engage in his chosen trade or business or occupation needs be well-secured. You, with your companion, instilled fears of horror and carried-out your acts of robbery having misused the trust that the complainant reposed on you as a genuine citizen seeking the complainant's service in your apparent hour of need.
20. 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.
21. As regards the offence of unlawful use of the motor vehicle, I order three months imprisonment to run concurrent with the sentence for robbery with violence.
22. I accordingly impose a term of 8 year imprisonment as your sentence.
23. 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)
24. 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