State v Rafai - Sentence [2012] FJHC 1095; HAC160.2011 (3 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 160 OF 2011

BETWEEN:

THE STATE

AND:

ILIESA RAFAI
[1st Accused]

ANARE VAKARAUTAKI
[2nd Accused]

EREMASI TASOVA
[3rd Accused]

Counsel : Mr T. Qalinauci for State
Ms Savou from Legal Aid Commission appeared for the Accused Persons

Date of Sentence : 3rd May 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charges against the 1st, 2nd and 3rd accused persons.

FIRST COUNT

Statement of Offence

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

Particulars of Offence

ILIESA RAFAI with ANARE VAKARAUTAKI and EREMASI TASOVA on the 29th day of May 2011, at Nahou, Vallley Road, Sigatoka in the Western Division, stole cash of $8150.00, assorted jewelries value at $15000.00 and assorted cigarettes and groceries valued at $500.00, all to the value of $23650.00, the said property of BIMLA WATI.

2. When the case was mentioned to take plea the 1st and 2nd Accused persons pleaded guilty and on a subsequent date they have admitted the Summary of facts.

3. Being convinced with the Plea of the 1st and 2nd Accused Persons are unequivocal. I found both accused persons guilty and convicted them for aggravated Robbery punishable under section 311 (1) (a) of the Crime Decrees.

4. Recently the Supreme Court confirmed the tariff for this offence as 8-14 years in Guston Fredrick Kean vs The State 2011 (FJSC) 11 (12 August 2011).

5. Considering the nature of the offence you had no regards on others life and property. I commence your sentence at 8 years imprisonment.

6. Considering the aggravating factors:

1. Knife used to threat the inmates of the house
2. The offence was committed in the middle of the night

100. One of the victim was punched
     

Considering the above factors I increase your sentence by two years. Now your sentence is 10 years imprisonment.

7. I consider the mitigating circumstances of the 1st accused

1. You are a first offender
2. You have pleaded guilty at a very early stage of the case.

100. You submitted that you are the sole bread winner of your family

4. You submitted that you got only $420.00 as your share of the robbery
5. You are remorseful
6. You promise that you will not commit any offence in the future
7. You submit that your parents are depending on your income
8. Period in remand
   

Considering all, I reduce your sentence by 7 years. Now your sentence is 3 years imprisonment.

8. Considering the mitigation circumstances of 2nd Accused.

a) You are married with 3 young children

b) You have pleaded guilty at the early stage of the case

c) You are remorseful

d) You claim you got only $420.00 as your share

e) Part of the stolen items were recovered.

f) You claim you are the sole breadwinner of your family

g) You promise you will not commit any offence in the future

h) Period in remand

Considering all, I reduce your sentence by 7 years. Now your sentence is 3 years.

9. Now I consider Section 4 (1) of the Sentencing guidelines decree.The only purpose for which sentencing may be imposed by a court are

(a) to punish officers' to an extent and in a manner which is just in all the circumstances;
(b) to protect the community from offenders;
(c) to deter offenders or other persons from committing offences of the same or similar nature;
(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;
(e) to signify that the court and the community denounce the commission of such offences; or
(f) any combination of these purposes.

10. I further consider Section 4 (2) of the Sentencing guidelines decree. 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 guideline judgment;
(c) the nature and gravity of the particular offence;
(d) the offender's culpability and degree of responsibility 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;
(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;
(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree
(i) the offenders previous character
(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence;
(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

11. Considering section 26(1) of the Sentencing and penalties Decree the section states as follows:

"on sentencing an offender to a term of imprisonments a court may make an order suspending for a periods specified by a court, the whole or part of the sentence, it is satisfied that it is appropriate to do so in the circumstances."

12. Your sentence is suspended for the period of 7 years. Nature and consequences are explained to the Accused persons. If you commit any offence during the operational period of 7 years you will be serving this sentence in addition to the punishment imposed to you in the later case.

13. Considering the nature of the offence I inclined to act under section 31 of the Sentencing and Penalties decree. I impose $2000.00 fine on each accused person. In default 5 months imprisonment.

14. Once the fine is received it will be paid to the virtual complainant.

15. Both accused persons are given 3 months to pay the fine in 3 installments.

16. Summary; 1st and 2nd Accused you are sentenced to 3 years imprisonment the same is suspended for a period of 7 years. In addition to the above sentence you are imposed of a fine of $2000 each in default 5 months.

17. 30 days to appeal to Court of Appeal

S. Thurairaja
Judge

At Lautoka
3rd May 2012

Solicitors : The Office of the Director of Public Prosecution for State
Legal Aid Commission for the Accused Persons