IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 021/2012

BETWEEN:

TEVITA RARO KARAVAKI
APPELLANT

AND:

STATE
RESPONDENT

COUNSEL: Appellant in person
Ms. V. Prasad for the Respondent/State

HEARING DATE: 19.10.2012
JUDGMENT DATE: 02.11.2012

JUDGMENT

01.	Tevita Raro Karavaki (hereinafter "the appellant") was charged for one count of Robbery contrary to section 310(1) of the Crimes Decree 44 of 2009 of the Laws of Fiji. The Charge was filed at the Suva Magistrates Court on 02nd day of February, 2012.

02. 	The particulars of offence were: 

"Tevita Raro Karavaki on the 01st day of January 2012 at Nabua in the Central Division stole one gold chain valued at $600.00 and one gold pendant valued at $1300.00 to the total value of $1900.00 from Sonita Vandhna Kumar and immediately before stealing used force to the said Sonita Vandhna Kumar "

03. 	On 02nd February 2012, the charge in respect of Criminal Case No: 75/2012 was read out to the Appellant. Appellant appearing in person pleaded guilty to the charge and admitted the summary of facts.

04. On 20/03/2012 he was sentenced to a prison term of three and half years (3 ½) with a non-parole period fixed at two and half years (2½). 

05. 	Being aggrieved by above sentence the appellant has appealed against the sentence on the following ground:

01. Appeal Ground 01: The learned Magistrate erred in law by not 
 Considering the following;

•	His early plea of guilty.
•	His co-operation with police and other mitigating grounds.
•	The value of items ($1900.00) was stated as aggravating factors when half of the value was recovered.
•	He had reconciled with the complainant and is willing to pay sum of money agreed by the complainant. 
•	That a lengthy sentence will jeopardise his life. As prison would not change his life since there is no education program set.
•	That the starting point of 4 years is excessively high.

02.	Appeal ground 02: The learned magistrate erred in law in imposing 3 ½ years sentence and eligible for parole after serving 2 ½ years which is excessive.

06. 	The general principle of sentencing under Section 15(3) of the Sentencing and Penalties Decree No: 42 of 2009 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 sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this part"

07. 	The objectives of sentencing, as set-out in Section 4(1) of the Decree, are as 
 follows:

1.	To punish offenders to an extend and in 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. 

08. 	Section 26 (1) of the Sentencing & Penalties Decree 2009 states:-

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances"

09. 	The Learned Magistrate, after considering the aggravating factors and mitigation submissions has imposed 3 ½ years imprisonment with a non-parole period of 2 ½ years.

10.	The maximum penalty for the offence of Robbery under the Crimes decree No: 44 of 2009 is 15 years imprisonment. The tariff for Robbery with violence is between 4 to 7 years imprisonment.

Justice Winter in the case Viliame Cavuilagi v State Crim. App. HAA 031 of 2004 stated that:

"Repetitive, recidivist of offending must inevitably lead to longer sentences of imprisonment, unless the offender can demonstrate special circumstances that motive the court to sentence otherwise. This principle meets three of society's needs. Firstly in might act as a deterrent to the offender and others who fall in into a pattern of semi-professional crime to support themselves. Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer period of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Third, offenders deserve punishment that fits circumstances of the crime".

Justice Goundar in State v Sakiusa Rokonabete & Others stated that:

"The dominant factor in assessing seriousness for any type of robbery is the degree of force used or threatened. The degree of injury to the victim or nature of and duration of threat are also relevant in assessing the seriousness of an offence of Robbery with Violence. If a weapon is involved in the use or force that will always be an important aggravating feature. Group Offending will aggravating 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 the 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 timely guilty plea, clear evidence of remorse, ready to co-operate 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 involve".

11. 	The appellant in his submissions stated that he is 25 years old and an orphan. The offence was committed due to excessive intake of liquor. The pendant was recovered by the police and handed over to the complainant. He has fully co-operated with the police in his caution interview. He has been in prison since 12/01/2012.

12.	State in their submission states that the learned magistrate had considered all mitigating and aggravating factors before passing the sentence. The total value of items was $1900.00 which was never recovered.

13.	This court issued a notice to the complainant to verify whether she had received any item robbed from her. She appeared and informed this court that she had received the pendant.

14.	The total value of the property robbed from the complainant is $1900.00. As per the charge sheet the value of the pendant is $ 1300.00. The complainant has received 2/3 of the property which had been robbed from her. This was not brought to the notice of learned magistrate when he passed the sentence against the accused.

15.	 Now I consider the Aggravating factors in this case.

1. Offence committed against a 20 year old female.
2. Complainant had been pushed to the ground.
3. Appellant has three previous convictions.

16.	Now I consider the mitigating factors in this case.

1. Early plea of guilty.
2. Apellant is 25 years old orphan.
3. No weapon used.
4. He co-operated with the police and admitted the charge in his  caution interview statement.
5.	The pendant which is valued at $1300.00 had been recovered and handed over to the complainant.
6. He has been in prison since 12/01/2012.
7. Truely remorseful.

17.	Considering all aggravated and mitigating circumstances I sentence you as follows:
I take 04 years as starting point. I add 01 year for aggravated factors and deduct 03 years for the mitigating factors. Now your sentence is 02 years imprisonment commencing from 20/03/2012. 

18.	The Appellant is truly remorseful and must be given an opportunity to prove that remorse by embarking on a period of good behaviour. I, therefore, suspend the remaining period of imprisonment for three years from 02/11/2012. Suspended sentence is explained to the appellant.

19. 	Appellant has 30 days to appeal.

P.Kumararatnam
JUDGE

At Suva
02/11/2012