State v Coka [2012] FJHC 992; HAC18.2012 (28 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 018 OF 2012

BETWEEN:

STATE

AND:

1. APAKUKI COKA
[1st Accused]

2. ELONI NAUGA
[2nd Accused]

Ms S. Puamau for the State
Both Accused Persons Appeared in Person

Date of Hearing :15th,22nd & 26th March, 2012
Date of Sentence :28th March, 2012

SENTENCE

1. The Director of Public Prosecutions had preferred the following charges against the Accused Persons above named.

COUNT 1

Statement of Offence (a)

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

Particulars of Offence (b)

APAKUKI COKA and ELONI NAUGA, in company with each other, on the 6th day of December, 2011 at Nadi in the Western Division stole a gold chain valued at $1,500.00, a 'Nokia' mobile phone valued at $190.00 and cash of $150.00, all to the total value of $1,840.00, the properties of ROLAND KUMAR, and during the course of the theft, APAKUKI COKA and ELONI NAUGA used force against the said ROLAND KUMAR in order to commit the thefts.

2. When the Plea was taken before the Court on 15th March, 2012 both Accused Persons pleaded guilty to the charge and admitted the Summary of Facts submitted by the State Counsel.

3. The Summary of Facts stated by the State is reproduced for easy reference.

"The accused persons in this matter are Apakuki Coka and Eloni Nauga. The complainant/victim in this matter is one Roland Kumar (PW-1). The complainant was parked along Namotomoto waiting for a passenger at about 5.55am on the morning of 6/12/11 when the accused persons got into the vehicle and robbed him of $150.00 cash, a gold chain valued at $1,500.00 and a black Nokia mobile phone valued at $190.00, all to the total value of $1,840.00, the properties of PW-1."

4. This Court being convinced with the Plea to be unequivocal found guilty and convicted both Accused Persons as charged.

5. 1st Accused APAKUKI COKA and 2nd Accused ELONI NAUGA, you stand convicted for Aggravated Robbery punishable under Section 311(1) (a) of the Crimes Decree 44 of 2009.

6. Section 311 Prescribes maximum of 20 years imprisonment.

7. Considering the tariff to this offences, in Guston F Kean v State (2011) FJHC 11 (12 August 2011) the Supreme Court endorsed between 8 – 14 years.

8. Considering all the factors I commence your sentence at 8 years imprisonment.

9. Considering the aggravating factors:

a) You both robbed a driver of a Public Service Vehicle. Considering the above factor I increase your sentence by 2 years now your sentence is 10 years imprisonment.

10. Considering the mitigating circumstances:

(a) you are 1st offenders;

(b) you pleaded guilty at the very 1st available opportunity;

(c) you are remorseful;

(d) you apologise to the victim;

(e) period in remand.

Considering all factors I reduce 7 years for your sentence. Now your sentence is 3 years imprisonment.

11. Both of you are seeking mercy of the Court and request another chance of life. In other words both of you are urging the Court to impose a non custodial sentence.

12. The learned State Counsel in his submission while emphasizing the seriousness of the crime submits to Court that both of you may be considered for a non custodial sentence.

13. Now I consider Section 4 (1) of the Sentencing guidelines decree.

The only purposes for which sentencing may be imposed by a court are-

(a) to punish offenders to an extend 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 offenders; or

(f) any combination of these purposes.

14. I further consider Section 4 (2) of the Sentencing guidelines decree. 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 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 offender's 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; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

15. Considering Section 26 (1) of the Sentencing and Penalties Decree the section states as follows:

"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."

16. Both of you committed a serious crime but considering all circumstances you deserve a second chance in your life, therefore I act under Section 26 (1) and suspend your sentence for 7 years.

17. Considering the nature of the offence I inclined to act under Section 31 (1) of the Sentencing & Penalties Decree.

18. Section 31 (1) states as follows:

"(1) If a person is found guilty of an offence the court may, subject to any specific provision relating to the offence, fine the offender in addition to or instead of any other sentence to which the offender may be liable."

19. After carefully considering all factors of the case I act under Section 31 (1) and impose a fine of $950.00 on the 1st & 2nd Accused Persons, in default 3 months and 05 days imprisonment.

20. Considering Section 34 of the Sentencing & Penalties Decree you are allowed to pay the fine in 3 installments in the first installment of $350.00 to be paid on or before the 27th April 2012, the rest will be on 28th of May 2012. The final installment should be paid on the 26th of June 2012.

21. When the fine is paid, the said amount will be given to the virtual complainant Mr Roland Kumar.

22. Summary:

1st Accused APAKUKI COKA

(a) You are sentenced to 3 years imprisonment and the same is suspended for a period of 7 years. If you commit any offence within this period you will be serving this sentence in addition to the sentence to be imposed to that offence. Further, you are imposed of a fine of $950.00 in default 3 months and 5 days imprisonment.

2nd Accused ELONI NAUGA

(b) You are sentenced to 3 years imprisonment and the same is suspended for a period of 7 years. If you commit any offence within this period you will be serving this sentence in addition to the sentence to be imposed to that offence. Further, you are imposed of a fine of $950.00 in default 3 months and 5 days imprisonment.

(c ) Both of you are given opportunities to pay the said fine in 3 installments commencing from 27th April, 2012.

23. 30 days to appeal to Court of Appeal

S. Thurairaja
JUDGE

At Lautoka
28th March, 2012