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State v Waqa - Sentence [2021] FJHC 385; HAC134.2021 (16 December 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]


CRIMINAL CASE NO. HAC 134 OF 2021


STATE


V


NEPOTE WAQA
ETIKA BALAWA


Counsel: Mr N Sharma for the State

Ms R Nabainivalu for the 1st Accused

Mr K Prasad for the 2nd Accused


Date of Hearing: 7 & 13 December 2021
Date of Sentence: 16 December 2021


SENTENCE


[1] The two Accused have pleaded guilty to a charge of aggravated robbery.


[2] The complainant is a 16-year old student. On 8 May 2021 at about 3.40 pm, he was walking along the Princess Road with his two cousins when he was attacked. One of the attackers grabbed the complainant from behind while the other tried to snatch his mobile phone from his pocket. When the complainant resisted, one of the attackers punched him on the head and the complainant fell down. The attackers grabbed the complainant’s mobile phone and fled the scene.


[3] The complainant and his cousins recognized the two Accused as they were from the same settlement.


[4] The incident was reported to Police. Upon investigation, the police recovered the stolen mobile phone from the first Accused’s residence.


[5] Under caution, both Accused made full admissions.


[6] The statutory maximum penalty for aggravated robbery is 20 years imprisonment. The offencobjectively seri serious because it was committed in the company of another. However, I have a duty to consider both the objective seriousness of the offence an seriousness of the actual conduct of the Accused.



[7] The nature of the robbery is a street mugging. There was no pre-planning involved. The offence was purely opportunistic. The violence used was minimal. The injuries, tenderness on the back of the neck sustained by the complainant are minor.

[8] The unlawful cful conduct falls on the lower end of the sentencing bracket of 18 months imprisonment to 5 years imprisonment for street mugging recommended by the Court of Appeal in qau v State [2008] FJCA FJCA 34; AAU0100.2007 (4 August 2008). The Court of Appeal said at [12]:


The leading English authority on the sentencing principles and starting points in cases of street robbery or mugging is the case of AttoGeneral’s References (Nos. 4 and 7 of 2002) (Lobhan, han, Sawyers and James) (the so-called ‘mobile phones’ judgment). The particular offences dealt in the judgment were characterized by serious threats of violence and by the use of weapons to intimidate; it was the element of violence in the course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances.

[9] In this case, both Accused are young and first time offenders. The first Accused is 22 years old and unemployed. The second Accused is 20 years old. He is a student at the Fiji National University. They have pleaded guilty at the first opportunity, cooperated with the police and expressed genuine remorse. The stolen phone had been recovered. These are strong mitigating factors.


[10] Counsel for the second Accused has submitted that the Accused has apologized to the complainant and his family and that they have accepted his apology. I alcept that the second Aond Accused played a secondary role in the joint enterprise and that the principal role was played by the first Accused. The stolen phone was recovered from the first Acc#8217;s residence.



[11] The second Accused seeks conviction not to be recorded against him. I have decided not to accede to that request. The offence is serious and the Accused is morally culpable.


[12] The aggravating factors are that the victim was a child and the offence of street mugging is prevalent in our community. Street mugging is an offence that is mostly committed by youths. Youth and previous good character are not exceptional circumstances to avoid custodial sentence. The need for deterrence overrides the need for rehabilitation in these cases.


<] Both Accused used are convicted and sentenced to 18 months imprisonment. I have decided to partially suspend the sentence because both Accused are genuinely reful, which is a special circumstance.


[14] Bot] Both Accused are to serve 6 months in prison and the remaining 12 months are suspended for 2 years.


[15] Recovered stolen property is restored to the owner.


. ...........................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid for both Accused person


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