State v Ragici [2012] FJHC 1082; HAC366, 367, 368.2011 (15 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 366 OF 2011

STATE

v.

1. WAISIKI RAGICI
2. SURESH KUMAR

CRIMINAL CASE NO: HAC 367 OF 2011

STATE

v.

1. WAISIKI RAGICI
2. P.L (JUVENILE)
3. SURESH KUMAR

CRIMINAL CASE NO: HAC 368 OF 2011

STATE

v.

1. WAISIKI RAGICI
2. P.L (JUVENILE)
3. SURESH KUMAR

Counsel: Mr. S. Nath for State
Mr. N. Sharma as Duty Solicitor for all Accused Persons

Hearing: 1 May 2012
Sentence: 15 May 2012

SENTENCE

[1] These cases have been consolidated for the purpose of sentence, after the accused persons pleaded guilty to the charges of aggravated robbery contrary to section 311(1) (A) of the Crimes Decree 2009. The offences formed part of a joint attack against three taxi drivers in the course of their employment.

[2] The guilty pleas were entered freely and voluntarily, and after advisement of rights. The facts tendered by the State support the charges. Waisiki Ragici and Suresh Kumar are convicted as charged. P.L being a juvenile is found guilty.

Facts

[3] The facts show a systematic and coordinated attack on the victims.

[4] HAC 366/11 concerns Waisiki Ragici and Suresh Kumar. The victim was a 43-year old taxi driver. The two accused hired the victim's taxi in the early hours of 8 October 2011. They took the victim to an isolated location and grabbed his neck from behind and took his mobile phone, cash and keys. The total value of the stolen items was less than $200.00. The victim received a superficial cut on his forehead. Following arrests, both accused confessed under caution. The mobile phone was recovered.

[5] HAC 367/11 concerns all three accused. The offence was committed on the night of 21 October 2011. The victim was a young 23-year old taxi driver. A similar modus operandi was used to rob the victim of his car stereo, taxi meter and cash, to a total value of $430.00. During the robbery, the victim was punched in his face and on his head. He sustained abrasions, swelling and bruising around his eyes. All three accused confessed, following arrest. The taxi meter was recovered.

[6] HAC 368/11 concerns all three accused. On the night of 28 October 2011, the accused used a similar modus operandi to rob the victim, a 23-year old taxi driver of items to a total value of $650.00.

Personal circumstances

[7] Waisiki Ragici is 18 years old. He is a first time offender. He comes from a poor family of eight siblings. He left school after Form 4. He completed a joinery course in a vocational school. He could not further his studies due to financial constraints. Before being remanded in custody, he was working as a joiner for a construction company.

[8] P.L is 17 years old. He also is a first time offender and comes from a disadvantaged background. He dropped out of school after Form 4 due to financial hardship. P.L is a juvenile under the Juveniles Act as amended by section 57 of the Prisons and Corrections Act 2006. Under the amended definition, a juvenile means a person who has not attained the age of 18 years. Under section 30 (3) of the Juveniles Act, a juvenile cannot be imprisoned for more than 2 years.

[9] Suresh Kumar is 29 years old. He comes from a broken home. He has a long string of convictions involving dishonesty. He committed the offences in this case while serving a suspended sentence for theft.

Sentencing principles

[10] The maximum penalty for aggravated robbery is 20 years imprisonment.

[11] In State v Susu [2010] FJHC 226, a young and a first time offender who pleaded guilty to robbing a taxi driver was sentenced to 3 years imprisonment.

[12] In State v Tamani [2011] FJHC 725, this Court stated that the sentences for robbery of taxi drivers range from 4 to 10 years imprisonment depending on force used or threatened, after citing Joji Seseu v State [2003] HAM043S/03S and Peniasi Lee v State [1993] AAU 3/92 (apf HAC 16/91).

[13] In State v Kotobalavu & Ors Cr Case No HAC43/1(Ltk), three young offenders were sentenced to 6 years imprisonment, after they pleaded guilty to aggravated robbery. Madigan J, after citing Tagicaki & Another HAA 019.2010 (Lautoka), Vilikesa HAA 64/04 and Manoa HAC 061.2010, said at p6:

"Violent robberies of transport providers (be they taxi, bus or van drivers) are not crimes that should result in non custodial sentences, despite the youth or good prospects of the perpetrators...."

[14] Similar pronouncement was made in Vilikesa (supra) by Gates J (as he then was):

"violent and armed robberies of taxi drivers are all too 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 every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver, they will receive a lengthy term of imprisonment."

[15] More recently, in State v Coka [2012] FJHC 992 (28 March 2012), the High Court in Lautoka sentenced two offenders to 3 years imprisonment suspended for 7 years and fined $950.00 for robbery of a taxi driver. It appears that the means test was not done before the fine was imposed. Apart from a comment that the offenders deserved a second chance, no reasons were given for suspending the sentence. The suspended sentence appears to be inconsistent with the guideline cases on robbery of public transport drivers. In an event I am not persuaded the case provides any guideline for future sentencing for aggravated robbery.

Mitigating factors

[16] On behalf of all three accused, Mr Sharma presented the best mitigation. I consider the following to be the mitigating factors:

Early guilty pleas,

Confessions to the police,

Remorse,

Partial recovery of stolen items,

Youth and previous good character of Waisiki and P.L,

Disadvantaged background.

Aggravated factors

[17] I consider the following to be the aggravated factors:

Coordinated attacks on three taxi drivers

Physical injuries sustained by two victims

Remand periods

[18] I take into account the remand periods:

Waisiki – 2½ months

P.L – 5½ months

Suresh – 5½ months

Purpose of sentence

[19] The purpose of sentence that applies to the offenders is both special and general deterrence if the taxi drivers are to be protected against wanton disregard of their safety. I have not lost sight of the fact that Waisiki and P.L are first time young offenders. I bear in mind that the first time young offenders are generally given non-custodial sentences as a measure of rehabilitation. But the ultimate approach to a sentence is that the punishment must fit the crime, even if the offenders are young.

[20] For Suresh, apart from deterrence, the purpose of his sentence is the protection of the community. In the past, he had been given many opportunities to reform himself but he made no use of those opportunities. He committed these offences while serving a suspended sentence. He appears to be the mastermind of these offences. By taking into account his antecedent and character and the circumstances of the present offending, I treat Suresh as a habitual offender and a threat to the community.

Sentence

[21] On an objective seriousness of the offence, 6 years imprisonment is an appropriate starting point, with 4 years added to reflect the aggravating factors.

[22] For Waisiki, a total reduction of 7 years is made to reflect his guilty pleas, mitigating factors and remand period. On each count, Waisiki is sentenced to 3 years imprisonment.

[23] For P.L (him being a juvenile), a total reduction of 8 years is made to reflect his guilty pleas, mitigating factors and remand period. On each count, P.L is imprisoned for 2 years.

[24] Due to the violent nature of the offences, I decline to suspend the imprisonment terms. I decline to impose non-parole periods for Waisiki and P.L due to their youth.

[25] For Suresh, a total reduction of 4 years is made to reflect his guilty pleas, mitigating factors and remand period. On each count, Suresh is sentenced to 6 years imprisonment with a non-parole period of 5 years. The primary purpose of his sentence is the protection of the community, him being a habitual offender.

[26] I make all sentences concurrent.

Daniel Goundar
JUDGE

At Suva
15 May 2012

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for all Accused persons