State v Bainivalu [2012] FJHC 1060; HAC114.2011 (3 May 2012)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 114/ 2011

BETWEEN:

STATE

AND:

PONIPATE BAINIVALU

COUNSELS: Mr. Y. Prasad for the State

Accused in person

Date of Hearing : 18th April, 2012

Date of Sentence : 03rd May, 2012

SENTENCE

01. The Director of Public Prosecution had preferred the following charges against the accused above named.

First Count

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311(1)(b) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

ISIKELI NAVIA and PONIPATE BAINIVALU on the 13th day of April 2011 at Verata Wailevu, Nausori, in the Central Division, being armed with an offensive weapon stole assorted jewelleries valued at $10000.00, assorted mobile phones valued at $131.00, Panasonic Deck valued at $200.00 and cash $450.00 to the total value of $10781.00 from Jagendra Sharma.

Second Count

Statement of offence

THEFT: Contrary to section 291 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

ISIKELI NAVIA and PONIPATE BAINIVALU ON 13th day of April 2011, at Vereta Wailevu, Nausori stole a vehicle registration No ER 020 valued at $18000 of the property of Custom Built Sheet Metal.

02. When the Plea was taken on the 20th day of July, 2011 the accused had pleaded not guilty to both charges against him. But on 10th day of April, 2012 accused changed his plea and pleaded guilty to both charges. Accepting the Plea to be unequivocal this court found him guilty and convicted him under Section 311(1) (b) and Section 291 of Crimes Decree No: 44 of 2009.

03. State Counsel submitted following summary of facts of which the accused admitted.

On the 13th of April.2011 at around 1.30am in Verata Nausori, the accused together with his other accomplices broke into the house of one Jagendra Sharma aged 54 years, supervisor of a company by profession. Entry was gained by removing four blades of the washroom of the victim's house.

During the time of the robbery the accused and his other accomplices were armed with pinch bar, stone, kitchen knife threatened, assaulted and robbed the victim and terrorized his family, who were fast asleep only to be rudely awakened in the middle of the night by the accused and his accomplices. The whole house of the victim was ransacked during the robbery.

The accused and his accomplices robbed the following items from the victim's house.

1. Jewelleries valued at $10000.00

2. Cash $450.00

3.2 Mobile phones valued at $131.00

4. One Panasonic deck worth $ 200.00

All items stolen in the aggravated robbery totalled to $10781.00. The accused then with his other accomplices used the company vehicle of the victim, registration No: ER 020 and used the same vehicle as their get-away car from the crime scene.

Accused was arrested and caution interviewed whereby the accused admitted robbing the victim and his family at question nine of the caution interview statement.

04. As per section 311(1) (a) of Crimes Decree, 2009 the maximum sentence for the offence of Aggravated Robbery is 20 years imprisonment. This is similar to the offence of Robbery with Violence in the old Penal Code.

05. In State v Rokonabete [2008[ FJHC 226: HAC 118.2007(15th September 2008) Justice Goundar itemized elements to be considered when assessing the seriousness for any types of robbery.

"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 treat of force that will always be an important aggravating feature. Group offending will aggregate 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 person providing public transport, that will be an aggravating factor. Other aggravating factors may include the volume of items taken and the fact that an offence was committed whist 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 sentence, personal circumstances of offender, first offence of violence, voluntary of property taken, a minor part, and lack of planning involved."

In State V Manoa[2010]FJHC 409:HAC 061.2010(6th August 2010),the learned judge employed the sentencing tariff for the offence of Robbery with Violence from the old Penal Code when sentencing for the offence of Aggravated Robbery in the new Crimes Decree No: 44 of 2009.

"The maximum penalty for robbery with violence under Penal Code is life imprisonment, while the maximum penalty for aggravated a robbery under the Crimes Decree is 20 years imprisonment. Although the maximum sentence under the Decree has been reduced to 20 years imprisonment, in my judgment, the tariff of 8-14 years imprisonment established under the old law can continue to apply under the new law. I hold this for two reasons. Firstly, the established tariff of 8-14 years under the old law falls below the maximum sentence of 20 years under new law. Secondly, under the new law, aggravated robbery is made an indictable offence, triable only in the High Court, which means the Executive's intention is to continue to treat the offence seriously"

06. As per Section 291 of Crimes Decree No: 44 of 2009 the maximum sentence for the offence of Theft is 10 years imprisonment. The tariff for the offence of theft under Penal Code which shall be applied in this Crimes Decree is 1-4 years as held in Cavuilagi v State [2004] FJHC 92.In this case it was further held that;

"Upper end of that scale being reserved for especially aggravating features of the offence or the offender. Repeat offenders can expect a sentence of at least 2 years imprisonment".

07. The accused is 35 years of age, married with two children. When arrested he co-operated with the police and made confession in his Record of Interview. He is the sole bread winner of the family. He looks after his mother who is feeble. At present he is serving an 8 years imprisonment.

08 I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

09. Section 15(3) of the Sentencing Decree provides that:

"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 sentence 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".

10. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
2. To protect the community from offenders;
3. To deter offenders or other persons from committing offences of the same or similar nature;
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
5. To signify that the court and the community denounce the commission of such offences; or
6. Any combination of these purposes.
   

11. Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

12. Now I consider the aggravating factors:

1. The Robbery was a planned one.
2. It was a gang robbery where the accused was involved with others.
3. The accused along with others were armed and intimidated the inmates of the house. This resulted in traumatizing the entire family members.
4. There were cash and assorted items stolen by the accused with others to the value of $10781.00.Also stolen a vehicle bearing No: ER 020.
5. Stolen items have not been fully recovered.
6. Victim has received minor injuries during the robbery.
   
13. Now I consider the mitigating circumstances:
    

(a) The accused pleaded guilty before the commencement of the trial.

(b) Accused is 35 years old married with two children.

(d) He co-operated with the Police and made confession in his record of caution interview statement.

(e) He is the sole breadwinner of the family.

(f) He looks after his mother who is feeble.

(e) He is remorseful.

14. Considering all aggravated and mitigating circumstances I sentence you as follows:
    
    • For the charge of Aggravated Robbery I take 08 years imprisonment as the starting point. I add 02 years for aggravating factors to reach the period of imprisonment at 10 years. I deduct 02 years for the mitigating factors.
      
    • For the charge of Theft I take 03 years imprisonment as the starting point. I add 01 year for the aggravated factors to reach the period of imprisonment at 04 years. I deduct 01 year for the mitigating factors.
      

15. In summary you are sentenced to 08 years imprisonment for the charge of Aggravated Robbery and 03 years imprisonment for the charge of Theft to run concurrently on both counts.

16. I further order that you serve this sentence concurrently with your pre-existing sentence.

17. Acting in terms of section 18(1) of the Sentencing and Penalties Decree, I impose 07 years as non-parole period.

18. 30 days to appeal.

P.Kumararatnam

JUDGE

At Suva

3rd May, 2012