State v Naitokatoka [2022] FJHC 134; HAC191.2021 (23 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 191 of 2021

STATE

V

SEREVI NAITOKATOKA

Counsel : Mr. Zenith Zunaid for the State
Mr. Atama Waqanivavalaqi for the Accused

Sentence Hearing : 7 March 2022

Date of Sentence : 23 March 2022

SENTENCE

[1] As per the Information filed by the Director of Public Prosecutions (DPP), Serevi Naitokatoka, you were charged with the following offence:

COUNT 1

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Sections 311 (1) (a) of the Crimes Act 2009.

Particulars of Offence

SEREVI NAITOKATOKA, with another, on the 30^th day of April 2021, at Suva, in the Southern Division, in the company of each other, stole $100 cash, 1 x ATM Card, 1 x black bag containing 1 x Philips brand audio system, 1 x PSV driver’s badge, 1 x driver’s record and 2 x paper rolls from RONEEL CHAND and immediately before stealing from RONEEL CHAND, used force on him.

[2] The State filed the Information in this matter on 23 September 2021 and Disclosures relevant to the case on 12 October 2021. The said documents were served on you on 15 November 2021.

[3] Serevi, on 10 February 2022, you were ready to take your plea. On that day you pleaded guilty to the one count in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charge against you and the consequences of your plea.

[4] On the 7 March 2022, the Summary of Facts were filed in Court and read out and explained to you. You confirmed that you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the count of Aggravated Robbery in the Information, and found the charge proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the count as charged.

[5] I now proceed to pass sentence on you.

[6] The Summary of Facts filed by the State was as follows:

“Accused (A1)

A1 in this matter is one, Serevi Naitokatoka, 18 years 1 month old at the time of offending, resides at Jittu Estate, Raiwaqa, Suva.

Complainant 1: PW1

The complainant in this matter is one, Roneel Chand, 36 years old, employed as a bus driver (Raiwaqa Bus Company) and resides at Fletcher Road, Vatuwaqa.

Prosecution Witness 2: PW2

PW2 in this matter is one, Mohammed Yusuf, 34 years old, employed as a taxi driver and resides at Caubati.

Prosecution Witness 3: PW3

PW3 in this matter is one, Livai Roko, 27 years old, employed at China Railway and resides at Gaji Road, Raiwaqa.

Prosecution Witness 4: PW4

PW4 in this matter is one, DC 5053 Aceni Toga, Police Officer.

Prosecution Witness 5: PW5

PW5 in this matter is one, DC 5605 Gukisuva, Police Officer.

Facts:

1. The complainant in this matter is a bus driver who drives for Raiwaqa Bus Company. On the 30^th day of April 2021, between 7.20 pm – 7.45 pm, after finishing work, the complainant went and parked the bus he had been driving at the company bus bay.
   
2. The complainant then proceeded to walk along Kasanji Street industrial area in Vatuwaqa with the intention to walk home. At that point, the complainant had 2 x $50.00 notes and his bank ATM card in his front bula-shirt pocket. The complainant was also carrying his black bag which contained 1 x Philips brand car audio system, 1 x PSV driver’s badge, 1 x driver’s record and 2 x paper rolls. The items in the complainant’s bag was of an approximate total value of $192.00.
   
3. The area along Kasanji Street industrial area was well lit with street-lights and passing by vehicle lights. As the complainant walked along the Kasanji Street industrial area, suddenly an unknown youth grabbed the complainant from behind, at the same time blocking his mouth and grabbing the front of his bula-shirt pocket. Another youth that being the accused then pulled the complainant’s bag off him with force. During the commission of the offence, the complainant was two meters away from the accused and from the well-lit area; he was able to identify the accused as an iTaukei youth, dark in complexion, about 5 feet 4 inches in height, wore an orange t-shirt, black and white lime in colour ¾ pants and grey canvas. The complainant was only able to identify the accused’s accomplice to have been wearing a white t-shirt with ¾ pants.
   
4. Immediately after robbing the complainant, the accused and his accomplice then began to run away. The complainant gave chase to the accused who was carrying the complainant’s stolen bag. The complainant then began yelling out “butako” meaning “robbery” with the intention to create awareness and seek assistance from the public. PW2 who is a taxi driver was driving along the crime scene when he said he saw and heard an Indo-Fijian man yelling out for help near Goodman Fielder factory. PW2 saw that the complainant was chasing an iTaukei youth (the accused) who at that point was wearing a black t-shirt and was holding onto a black knapsack bag. PW2 accelerated his vehicle to chase down the accused. The accused was almost bumped by PW2’s vehicle during the chase.
   
5. The accused then ran across the road and kept on running. Both the complainant and PW2 did not at any point lose sight of the accused. The complainant was at least 10 meters behind the accused during the chase. PW2 then began yelling “vesu, vesu” meaning “arrest him, arrest him”. The cries for help were heard by PW3, a member of the public and the accused’s cousin, who then chased and arrested the accused. The accused was arrested near the crime scene and was found with the complainant’s bag and belongings. The accused’s accomplice managed to get away.
   
6. PW3 stated on the day of the offence, at around 7.20 pm, he was walking along Kasanji Street after finishing off from work. PW3 said that along the way, near the Pure Fiji factory, he met his cousin (the accused) whom he knew as “Serevi”. The accused resides a few meters away from PW3. PW3 then stopped and spoke to the accused in which the accused told him that he was on his way to Wailea Settlement in Vatuwaqa to meet his aunty. At the time PW3 recalls the accused was wearing a black t-shirt and a ¾ shorts. The accused was with his friend named “Hope”. PW3 recalls that when he spoke to the accused, the accused was not carrying anything.
   
7. PW3 stated that after he spoke to the accused and was walking home, nearly one minute later he heard someone calling out “robbery”. PW3 saw some drivers chasing his cousin (the accused) in the middle of the road. PW3 also saw “Hope” (the accused’s accomplice) throw something and also began running. PW3 saw the accused running between cars and at this point he was carrying a bag. Instantly, PW3 knew that the accused had robbed someone. PW3 then ran straight at the accused and managed to overpower and arrest him near Ashabhai Company. PW3 pulled the accused to the side of the road and he saw “Hope” running towards Grantham Road. When PW3 arrested the accused, the accused had the complainant’s bag with him. Shortly after the complainant arrived where the accused was arrested and explained to PW3 that the accused and his accomplice had just robbed him. PW3 then loaded the accused into PW2’s taxi with the complainant and escorted him to the Police Station and handed him over to Police custody.
   
8. PW4 who is a Police Officer at Raiwaqa Police Station stated that some members of the public arrived in a taxi with a suspect of an alleged aggravated robbery. The accused was re-arrested by PW4 and escorted to Nabua Police Station.
   
9. The accused was later interviewed under caution by the Police where he made full admissions. The accused stated that on the day and time of the offending, he was with his friend namely Hope. The accused stated that he had known Hope from the Juveniles’ Centre in Samabula and that Hope originally resides in Lautoka but was residing in Raiwai due to the lock down (Q & A 28 – 34). The accused stated that they were walking along Grantham Road towards Gaji Road when they saw an Indian man come out of the Raiwaqa bus garage. The accused stated that they saw that the Indian man was carrying a small black hand-bag and this is when they planned to rob him (Q & A 38 – 42). The accused stated that they saw the Indian man walk along Kasanji Street and this is when they crossed over to the other side and began following him (Q & A 43).
   
10. The accused stated that as they passed the Kasanji Bridge, he crossed over to the other side and took the lead whilst Hope was behind the Indian man (Q & A 44). The accused admitted that when he had walked along Kasanji Street, he met Livai who is his neighbor and cousin near Pure Fiji factory (Q & A 45 – 48). The accused stated that Livai was heading home towards Jittu Estate. The accused then walked towards the newly built plaza across Goodman Fielder. The accused stated that as the Indian man was about to reach the newly built plaza, Hope approached him. Hope then tapped the Indian man’s shoulder from behind. As Hope did this, the accused grabbed the Indian man’s bag (Q & A 49 – 52). The accused admitted that during the robbery, he had kicked the Indian man’s right leg which caused him to fall and the accused further admitted that he then stepped on his chest and grabbed the bag (Q & A 54 – 56).
    
11. After grabbing the bag, the accused stated that he ran towards the Gaji roundabout but he was not sure which direction Hope ran towards as the accused was trying to escape with the bag (Q & A 58 – 60). The accused admitted that he was chased by the Indian man and a taxi driver (Q & A 61). The accused stated that whilst being chased, he was caught by Livai (Q & A 62 – 63). The accused stated that at the time of the offence, he was wearing an orange t-shirt with a black t-shirt inside and a pair of black short. However, the accused stated that when Livai caught him, he then took off his orange t-shirt and wore his black t-shirt (Q & A 64 – 65). The accused stated that he grabbed a black bag from the complainant, but he was unable to check what all was inside (Q & A 72 – 73). The complainant’s stolen bag was shown to the accused and he confirmed that was the same bag which he grabbed off the complainant (Q & A 76). The accused was then taken for scene reconstruction.
    
12. The accused with another on the 30^th day of April 2021, had robbed the complainant of his properties as listed in the Information and immediately before stealing from the complainant, used force on him.
    
13. All the items were recovered in this case except for the $100.00 cash and the ATM card.
    
14. Annexed and marked as “Annexure A” is the accused’s record of interview.”

[7] Serevi you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[8] Section 4 (1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders 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.

[9] I have duly considered the above factors in determining the sentence to be imposed on you.

[10] In terms of Section 311 (1) of the Crimes Act No. 44 of 2009 (Crimes Act), “A person commits an indictable offence (of Aggravated Robbery) if he or she-

(a) commits a robbery in company with one or more other persons; or
(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her”.

The offence of ‘Robbery’ is defined at Section 310 (1) of the Crimes Act as follows:

“A person commits an indictable offence (which is triable summarily) if he or she commits theft and —

(a) immediately before committing theft, he or she—

(i) uses force on another person; or
(ii) threatens to use force then and there on another person —

with intent to commit theft or to escape from the scene; or

(b) at the time of committing theft, or immediately after committing theft, he or she—

(i) uses force on another person; or

(ii) threatens to use force then and there on another person—

with intent to commit theft or to escape from the scene”.

[11] The offence of Aggravated Robbery in terms of Section 311 (1) of the Crimes Act carries a maximum penalty of 20 years imprisonment.

[12] The tariff for the offence of Aggravated Robbery is between 8 and 16 years imprisonment. This tariff has been endorsed by the Supreme Court in Wallace Wise v. State [2015] FJSC 7; CAV 04 of 2015 (24 April 2015); where it was held:

“......We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them.”

[13] However, in State v. Josaia Warodo Vatunicoko [2018] FJHC 885; HAC210.2018 (21 September 2018); His Lordship Justice Goundar summarised the various tariffs for the offence of Aggravated Robbery depending on the nature and circumstances of the robbery in the following manner:

“[4] In assessing the objective seriousness of your offending, I am mindful that aggravated robbery in the company of others is punishable by 20 years’ imprisonment. The tariff depends on the nature and circumstances of the robbery. The tariff is as follows:

Street mugging: 18 months to 5 years’ imprisonment (Raqauqau v. State [2008] FJCA 34; AAU0100.2007 (4 August 2008).

Home invasion: 8 – 16 years’ imprisonment (Wise v. State [2015] FJSC 7; CAV0004.2015 (24 April 2015).

A spate of robberies: 10 -16 years’ imprisonment (Nawalu v. State [2013] FJSC 11; CAV0012.12 (28 August 2013).”

[14] The Court of Appeal in (Joji) Donu v. State [2020] FJCA 204; AAU0147.2017 (22 October 2020) further discussed the sentencing tariff applicable for street mugging. His Lordship Justice Prematilaka held as follows:

“.....[38] In Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) the complainant, aged 18 years, after finishing off work was walking on a back road, when he was approached by the two accused. One of them had grabbed the complainant from the back and held his hands, while the other punched him. They stole $71.00 in cash from the complainant and fled. The Court of Appeal remarked:

‘[11] Robbery with violence is considered a serious offence because the maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in BaThe State Criminpeal No.AAU0024 of 20of 2005 (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should be based on English authorities rathan tof New Zealand, and, as had been the previous practice, bec, because the sentence provided in Peode is similar to thto that in English legislation. In England the sentencing range depends on the forms or categories of robbery.

[12] The lg Engauthority on the sentencing principles and startitarting points in cases of street robbery bery or mugging is the case of Att General’s Refe References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-d ‘mobile phoe phones7; judgment). The particular offences dealt in the judgment were characterized by serious tous threats of violence and by the use of ns to intimidate; it was the element of violence in the coue 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, and further where the maximum penalty was life imprisonment:

• The sentencing bracket was 18 months or 5 years, but the upper limit of 5 years might not be appropriate ‘if the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed’.
• An offence would be more serious if the victim was vulnerable because of age (whether elderly or young), or if it had been carried out by a group of offenders.
• The fact that offences of this nature were prevalent was also to be treated as an aggravating feature.

[39] The sentencing tariff for street mugging was once again discussed in Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) where the complainant was going home at about 4.30 p.m. when the appellant with another person had called him and asked for money and when told that he had no money, the appellant had hit him with a knife and the other had assaulted him with an iron rod. After assaulting the complainant the appellant had taken $20 from him and run away. The Court of Appeal having discussed Raqauqau and other decisions said as follows.

‘[35] The adoption of the tariff in Wise (Supra) dot seem to be appr appropriate to the present case as it does not come within the nature of a home invasion category of aggravated robbery and is a situation which would come within the tf strugging cases. Con. Considersidering the objective seriousness of the offending and the degree of culpability, the harm and loss caused to the complainant it would be appropriate to follow the sentencing pattern suggested for instances of street mugging.

[40] Again the Court of Appeal in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) dealt with a case of street mugging in the following terms.

‘[15] The learned single Justice of Appeal, in giving leave to appeal, distinguished facts in Wallace Wise&#16pra)upra), which involved a home invasion as opposed to the facts in Raqauqau v State [2008] FJCA 34; AAU0100.2007 (04 August 2008), where aggravated robbery was comd on a person on the streettreet by two accused using low-level physical violence.

[16] Low threshold robbery, with or wt less physical violence, ice, is sometimes referred to as streeging informally illy in common parlance. The range of sentence for that type of offence was set at eighteen months to five years by the Fiji Court of Appeal in Raqauqau’

‘[19] Upon a considerationation of the matters, as set-out above, I am of the view that the learned trate had acted a upon wrong principle when he applied the tariff set for an entirely diffedifferent category of cases to the facts of this case, which involved a low-threshold robbery committed on a street with no physical violence or weapons. When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.

[15] The facts of the instant case clearly depicts that this is a case of street mugging. Therefore, in my opinion the appropriate tariff in the instant case should be between 18 months to 5 years imprisonment.

[16] In determining the starting point within a tariff, the Court of Appeal, in Serevi Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[17] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, including the maximum sentence prescribed for the offence, the nature and gravity of the offence and the degree of culpability, Serevi, I commence your sentence at 18 months imprisonment for the offence of Aggravated Robbery.

[18] The aggravating factors are as follows:

(i) The frequent prevalence of these offences in our society today. This has created a great sense of fear amongst the general public.

(ii) You and your accomplice paid scant regard to the safety and security of the complainant, who was returning home after completing his employment for the day.

(iii) You and your accomplice committed this offence in the early hours of the night.
(iv) I find that there was some amount of pre-planning or pre-meditation on you and your accomplice’s part in committing this offence [Although you have submitted that this was only a crime of opportunity that took place at the spur of the moment].

[19] Serevi, in mitigation, you have submitted as follows:

(i) That you are a first offender and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.

(ii) You have fully cooperated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.

(iii) Some part of the stolen property was recovered with your assistance. Only the $100.00 cash and the ATM card belonging to the complainant was not recovered.

(iv) You have submitted that you are truly remorseful of your actions and you have assured Court that you will not re-offend.

(v) That you have entered a guilty plea at an early stage of these proceedings.

[20] Considering the aforementioned aggravating factors, Serevi, I increase your sentence by a further 4 years. Now your sentence for the offence would be 5 years and 6 months imprisonment.

[21] Serevi, I accept that you are a person of previous good character and that you have fully co-operated with the Police in this matter and also the fact that some part of the stolen property was recovered with your assistance. I also accept your remorse as genuine and the assurance given by you that you will not re-offend. Accordingly, considering these mitigating factors, I deduct 2 years and 6 months from your sentence. Now your sentence would be 3 year’s imprisonment.

[22] Serevi, I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court. For your guilty plea I grant you a further discount of 12 months.

[23] Accordingly, Serevi I sentence you to a term of 2 year’s imprisonment.

[24] The next issue for consideration is whether your sentence should be suspended.

[25] Section 26 of the Sentencing and Penalties Act provides as follows:

(1) 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.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[26] Serevi, you are now 19 years of age [Your date of birth being 8 March 2003]. You had turned 18 one month prior to the offending. You are residing at Jittu Estate, Raiwaqa, with your parents and siblings. You are currently a Form 6 student at Ratu Sukuna Memorial School.

[27] You have admitted your wrongdoing and submitted that you are taking full responsibility for your actions, which you now regret. You state that you committed this offence with one of your friends (Hope) whom you have known for almost 1 year.

[28] Serevi, you have submitted that you have a bright future ahead of you given that you have just completed your Fiji School Leaving Certificate Examination (FSLC exams), which is the Form 6 external examination. You are now awaiting your results to determine your next move. You have submitted that you wish to be an architect by profession. Being the eldest son in the family, you say you are determined to find gainful employment and fully support your parents and family in the future.

[29] You have further submitted that you are a member of a Rugby Club in Raiwaqa and also a youth member of the New Methodist Christian Fellowship. Apart from receiving guidance from your parents, you say that you are willing to take further counselling from elders at your Rugby Club and Church elders to help you reform.

[30] Serevi you were arrested for this case on 30 April 2021 and was granted bail by the Suva Magistrate’s Court on 3 May 2022. Thus you were in remand for a period of 4 days.

[31] In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held:

“....However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”

[32] In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held:

“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”

[33] Serevi, I have considered the following circumstances:

• You are a young offender;
• You have been of previous good character;
• You have fully co-operated with the Police in this matter;
• You have accepted full responsibility for your conduct;
• You submit that you are truly remorseful of your actions and have sought leniency from this Court;
• You have assured Court that you will not re-offend and are willing to reform;
• Some part of the stolen property was recovered with your assistance;
• You entered a guilty plea at an early stage of these proceedings;
• You have spent 4 days in remand custody for this case.
  

Accordingly, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentence.

[34] However, in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentence for a period of 7 years.

[35] In the result, your final sentence of 2 years imprisonment, is suspended for a period of 7 years. You are advised of the effect of breaching a suspended sentence.

[36] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT LAUTOKA
Dated this 23^rd Day of March 2022

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.