State v Fraser [2014] FJHC 719; HAC022.2010 (3 October 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 022/2010

BETWEEN:

THE STATE

AND:

JACK ANTHONY FRASER

COUNSEL : Mr F. Lacanivalu for the State

Ms. S. Jiuta for the Accused

Dates of Trial : 26-30/09/2014

Date of Summing Up : 01/10/2014

Date of Judgment : 01/10/2014

Date of Sentence : 03/10/ 2014

SENTENCE

[01] Jack Anthony Fraser has been charged with the following charge on amended information dated 21st day of November 2012 by Director of Public Prosecutions.

The Charge

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (b) of the Penal Code Cap 17.

Particulars of Offence

Jack Fraser and another, on the 26th day of October, 2009 at Lautoka in the Western Division, robbed Ronika Kiran of $3200.00 cash and assorted jewelleries worth $5779.00, 10 mobile phones worth $7429.00, 2 Ipods, 1MP3 player, 2 Tabua, 1 chopper and 1 black Canterbury carry bag worth $5305.00 all the total value of $21713.00 and immediately before such robbery did use personal violence on Ronika Kiran.

[02] After trial the accused was found guilty to the charge. Accordingly he was convicted for Robbery with Violence contrary to section 293(1) (b) of the Penal Code Cap 17.

[03] According to the prosecution the accused on 26/10/2010 armed with a chopper unlawfully entered the house of Imran Ali assaulted and threatened his wife Ronika Kiran and stole the items listed in the information. He had entered the house with two others.

[04] Ronika Kiran had identified the accused as he was a good friend of her husband Imran Ali. She had been assaulted on her forehead and her mouth and hands were tied with cello tape. Imran Ali too identified the accused while he was in the house. Accused and others had run away from the scene with the loot after Imran Ali came and called his wife. None of the items were recovered in this case. The actual bodily harm did to Ronika Kiran could not be ascertained as no medical report of her tendered at the trial.

[05] The accused's name was given to the police on the day of the incident.

[06] As per section 293 (1) (b) of the Penal Code the maximum sentence for the offence of Robbery with Violence is life imprisonment.

[07] 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."

[08] In State v Manoa [2010]FJHC 409:HAC 061. of 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"

[09] In Guston F. Keen v State Criminal Appeal No: AAU: 48 of 2008, the Court of Appeal stated the following:

"Robbery with violence carries a maximum sentence of life imprisonment. The tariff for home invasion gang robbery is sentence between 6 to 14 years imprisonment"

[10] The accused is 38 years of age. He is married and has three children. He is the sole bread winner of the family.

[11] 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.

[12] 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".

[13] 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.
   

[14] 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;

[15] Now I consider the aggravating factors:

1. The Robbery was a committed with violence.
2. The accused intimidated the inmates of the house with a chopper.
3. The robbery was committed on a woman in absence of her husband.
4. The robbery was committed by a group on the complainant.
5. The accused had caused adverse psychological trauma on the victim. The effect of which is difficult to foresee and asses even by psychologist or sociologist.
6. The accused has instilled a sense of fear into the complainant which may affect her whole life.
   

[16] Now I consider the mitigating circumstances:

1. Accused is 38 years old married person.
2. He has three children. They are 11 years, 10 years and 08 years of the age respectively.
3. The accused is a salesman at Office Express.
4. He is the sole breadwinner of the family.
   

[17] Considering all aggravating factors, mitigating circumstances and judicial authorities I take 10 years as starting point. I add 04 years for the aggravating factors and deducted 02 years for mitigating factors.

[18] Considering your remand period, prior to sentence I further deduct 03 years and 06 months from your sentence.

[19] In summary you are sentenced to 08 years and 06 months imprisonment for the charge of Robbery with Violence.

[20] The accused has six (06) previous convictions still in operational period but not for any serious charges.

[21] Considering all and acting in terms of section 18(1) of the Sentencing and Penalties Decree No: 42 of 2009, I impose 07 years as non-parole period.

[22] 30 days to appeal.

P Kumararatnam

JUDGE

At Lautoka

03/10/2014

Counsels: Office of the Director of Public Prosecution

Legal Aid Commission