State v Tora [2011] FJHC 31; HAC153.2010 (31 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

High Court Criminal Case No: HAC 153 0F 2010

BETWEEN

STATE
Prosecution

AND

PAULA TORA
The Accused

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

Date of Trial/Plea : 19th January, 2011
Date of Sentencing Submissions : 27th January, 2011
Date of Sentence : 31st January, 2011

RULING ON SENTENCE

1. You-Paula Tora- pleaded guilty to the charge of 'Aggravated Robbery' punishable under Section 311 (1) (b) of the Crimes Decree No 44 of 2009.
   
2. You accepted the summary of facts, as submitted by the State. Court, after being satisfied that your plea of guilt was voluntary and free from 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 revealed that you were 32 years old and that you were a grass-cutter by occupation.
   
4. You had got into a passenger transport bus plying between Lautoka and Saru/Natabua on 11th November, 2010 and robbed the cashbox containing day's collection of money from the complainant-driver of the bus. In the process, you punched the complainant as the latter was trying to escape your attack with the blunt side of the chopper with which you were armed at the time.
   
5. It is in light of these admitted facts that you were convicted for the offence of 'Aggravated Robbery' under Section 311 (1) (b) of the Crimes Decree. You now present yourself before me to receive your sentence.
   
6. The offence of 'Aggravated Robbery' is identical in its content to the offence of 'Robbery with Violence' under the Penal Code. While the latter was punishable with a term of life imprisonment, the former is punishable with a 20 year term of imprisonment; but, the offence of 'Aggravated Robbery' is exclusively triable by the High Court. This shows how serious the offence is treated both under the Decree and the Penal Code.
   
7. 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'.

I am also bound to pay due regard to the objectives and purposes of sentencing as stated in Section 4 of the Decree in considering the sentence against you.

8. In State v Rasaqio [2010] FJHC 287; HAC 155/2007, His Lordship Madigan J. observed that the normal range of sentence for 'Robbery with Violence' is now 10 to 16 years in the High Court after relying 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 with a non-parole period of 11 years on an accused for 'Robbery with Violence', who was also found guilty of murder in the same transaction.

9. The above principle was adopted in State vs Nileshwar Singh (HAC 022 of 2010 and HAC 35/2010) and in Manasa Volau (HAC 85 of 2009) where the starting point for the term of imprisonment was set at 10 years for an offence of 'Robbery with Violence'.

10. Given the identical nature of the offences, I am inclined to adopt the above principles in regard to the matter of sentence for the newly created offence of 'Aggravated Robbery' under the Crimes Decree. I would, accordingly, apply the range of 10-16 year imprisonment on the basis of the ruling in the case of State v Rasaqio (supra) for the offence of 'Aggravated Robbery' punishable under Section 311(1) (b) of the Decree.

11. It is in this factual and legal background that I now proceed to consider the appropriate sentence on you after taking into account submissions made in mitigation by you. It was submitted that:

(i) You are now 32 years of age;
(ii) You are married with five small children all of whom are below 10 years of age;
(iii) Your low-income position in the society and the absence of anyone-else to look after your family;
(iv) You are really remorseful and want to reform yourself;
(v) Your early guilty plea saving the time and resources of court and those of the State;
(vi) Your guilty plea dispensed with the necessity of a trial and saved the complainant of a possible traumatic agony of going through the ordeal of the crime at your hands by means of evidence in court; and,
(vii) You co-operated with the police and confessed to the police in a genuine gesture of admitting the crime.

12. Aggravating factors that need be considered in this case are:
(i) The offence was committed on a passenger transport bus and robbed its driver;
(ii) You used violence on the complainant-driver when the bus was on a highway with commuters on board; and,
(iii) Your act of assault on the complainant-driver really had posed a threat on the commuters, pedestrians and other road-users albeit no injuries were sustained by the complainant-driver.
13. As shown above, I adopt the range of 10-16 years of imprisonment for the offence of 'Aggravated Robbery'. 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 term of imprisonment that befits the facts of this case.
14. Public transport vehicles should be left secured and made free from any act of violence. You instilled fear of horror and carried-out your act of robbery having got into the bus as an innocent passenger.
15. 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 six months for the period, being nearly 2 1/2 months, that you were held on remand custody and another six months against your societal background.
16. I accordingly impose a term of 8 year imprisonment as your sentence.
17. You have had fourteen previous convictions from 15.07.1997 – 19.03.2008. I will, however, consider only the convictions entered against you in 2008, which are five in total. These convictions were for similar offences of burglary and larceny in respect of some of which suspended terms have been imposed.
18. 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 a term of 7 years in imprisonment. The sentence is to be treated as having been effected from 19th January, 2010, the date on which you tendered your plea of guilty.
PRIYANTHA NAWANA
Judge
High Court, Lautoka

31st January, 2011