State v Kaulamatoa [2022] FJHC 80; HAC238.2021 (23 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL DIVISION

CRIMINAL CASE NO. HAC 238 OF 2021

STATE

vs

1. MOSESE KAULAMATOA
2. VILIAME NASAVE QALOKIVUYA (Juvenile)
   

Counsels: Ms. Naidu M - for State

Ms. David L `` for Accused

Date: 23^rd February 2022

SENTENCE

1. Mr. Mosese Kaulamatoa and Master. Viliame Nasave Qalokivuya, you were charged in this Court by the Prosecution for one count of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Act 2009, as follows;
   

First Count

Statement of Offence

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

Particulars of Offence

MOSESE KAULAMATOA and VILIAME NASAVE QALOKIVUYA on the 22^st day of October 2021 at Nasinu, in the Central Division, in the company of each other, stole 1 * Samsung A50 mobile phone, property of MINGYA VAKATUTURAGA and immediately before committing theft used force on MINGYA VAKATUTURAGA.

2. You two accused have pleaded guilty to the above count stipulated in the information filed by the prosecution.
   
3. According to the summary of facts that were read to you in open court and admitted by you on 18/02/2022:
   
   • On 22^nd day of October 2021 at around 6 am at Valelevu Market, Mingya Vakatutugara (PW1) was with her cousin Nanise (PW2) and they were walking from Centrepoint towards Valelevu.
     
   • PW1 and PW2 reached Valelevu and made their way to the Hot Bread Kitchen. Whilst on their way to Hot Bread Kitchen, PW1 and PW2 noticed 2 itaukei boys following them and they acted suspicious and were signaling to each other.
     
   • PW1 and PW2 had made their way to Valelvu Market when first accused (MOSESE KAULAMATOA) grabbed PW1’s mobile phone and ran away.
     
   • PW1 shouted “Butako, Butako” meaning thief, thief whilst the first accused ran toward the Fiji Post, whereby PW3 (PC6002 Tavite) and PW4 (PC 7358 Rakaucoka), who were on duty at Valelevu Police Station heard the distress call of PW1 and ran after the first accused and PW1.
     
   • PW3 stated that he ran towards the junction of Saqa Street and Daniva Road and saw PW1 screaming and pointing towards the first accused. According to PW3, by then few itaukei men had already apprehended the first accused and PW3 has re-arrested him and taken him to custody.
     
   • Further, PW1 had informed PW4 that the second accused (VILIAME NASAVE QALOKIVUYA) was together with the first accused following them suspiciously and PW4 had arrested the second accused.
     
4. In comprehending the gravity of the offence you have committed, I am mindful that the maximum sentence prescribed by law for Aggravated Robbery is 20 years’ imprisonment.
   
5. However, the tariff depends on the nature and circumstances of the robbery. The applicable tariffs are as follows:
   

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

Home invasion: 8–16 years’ imprisonment (Wisi>Wise v State [2015] FJSC 7; CAV0004.2015 (2il 2015).

A spate of robberies: 10 -16 years’ imprisonment (Nawalu&#alu te [2013] FJSC 11; CAV0012.12Augus3).

Robbery of a taxi driver: 4-10 4-10 years (State v Tamani [2011] FJHC 725).

6. The offence committed by the two of you in this matter should be regarded as a street mugging. Therefore the appropriate tariff should range from 18 months to 5 years’ imprisonment.
   
7. In assessing the objective seriousness of offending of the two of you in this matter, I considered the maximum sentence prescribed for the offence, the degree of culpability, the manner in which you committed the offence and the harm caused to the complainant. I gave due cognizance to the sentencing guidelines stipulated in Section 4 of the Sentencing and Penalties Act 2009. This is a robbery that happened at dusk when the complainant was walking in the market with her cousin. Shopping or marketing can be seen as a regular activity of anyone living in our community. I am very mindful that offences of this nature disturbs the peace and tranquility of mind of our citizens when peacefully proceeding with their usual daily activities. In this regard, the Courts have a duty to discourage and deter this kind of anti-social behavior that instill unwanted fear in members of the public in carrying on with their lives.
   
8. As a result, Mr. MOSESE KAULAMATOA, I start your sentence with a starting point of 24 months, i.e. in the lower-range of the applicable tariff.
   
9. In mitigation, the defense counsel has informed Court that you were just over 18 years at the time of commission of this offence. That you are a first and young offender and have maintained a good character before the involvement in this offence. In consideration of your age, your rehabilitation chances are high. Therefore, I intend to consider your rehabilitation potential and this should be balanced with deterrence and community protection.
   
10. Further, your counsel has informed the court that you have entered an early guilty plea and that you regret your action on the day in question. You have also been supportive to the police during investigations after your arrest. Further, Court recognizes that by pleading guilty to the charge you have saved court’s time and resources at a very early stage of the Court proceedings. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of one third in your sentence.
    
11. The, prosecution brings to the attention of this Court that you have been in custody since your arrest on 22/10/2021 to 28/10/2021 amounting to 6 days, which period should be deducted from your sentence separately.
    
12. Taking all these factors coto consideration, I sentence you to 15 months and 24 days imprisonment as the sentence for the count you are charged with. Further, with the authority given ts court by Section 26 of the Sentencing and PenalPenalties Act of 2009, in considering your young age and potential you have in realizing the mistake done and becoming a law abiding citizen, your sentence is partially suspended, where you shall serve five months and 24 days of your sentence forthwith, and the remaining period of 10 months is suspended for three years.
    
13. If you commit any crime punishable by imprisonment during the above operational period of three (3) years and found guilty by the Court, you are liable to be charged and prosecuted for an offence according to Section 28 of the Sentencing and Penalties Act of 2009.
    
14. You have thirty (30) days to appeal to the Fiji Court of Appeal.
15. Master VILIAME NASAVE QALOKIVUYA, you are a very young boy of tender years, still schooling with the objective of learning and exploring the right path to proceed in life. Court wish to inform you that you have an entire future ahead of you and you’re expected to contribute positively and take responsibility in developing the future of this country as much as you can.
    
16. However, you have got entangled in the commission of this offence at an age of 16. In mitigation, your counsel has informed the Court that you have entered an early guilty plea and that you regret your action on the day in question. Further, Court recognizes that by pleading guilty to the charge you have saved court’s time and resources at a very early stage of the Court proceedings.
    
17. In identifying a suitable punishment for your admitted guilt in this matter, I take guidance from the decision of Nariva v The State (2006) FJHC 6; HAA 0148J.2005S (9 February 2006), where Justice Nazhat Shameem has held, as below:
    

“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.”

18. Therefore, with the expectation of supervising your conduct to assure that you don’t get involved in social misbehaviour as seen in this matter, this Court contemplates a probation order under Section 32(1) (f) of the Juvenile Act of 1973 against VILIAME NASAVE QALOKIVUYA in considering the nature of your involvement in the commission of this offence, your young age and in view of your high potential for rehabilitation. However, during this period you have to take stock of your life and your future. Consider this to be a form of assistance the Court is providing you.
    
19. In this regard, acting under Section 3 of the Probation of Offenders Act of 1952, this Court imposes a Probation Order on you Operative for 2 years from today, as below:
    
20. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    

........................................

Justice Dr. Thushara Kumarage

At Suva
23^rduary 2022

IN THE HIGH COUR COURT OF FIJI
AT SUVA
CRIMINAL DIVISION

CRIMINAL CASE NO. HAC 238 OF 2021

\

STATE

vs

1. MOSESE KALOUMATOA
2. VILIAME NASAVE QALOKIVUYA (Juvenile)
   

Probation Order

In consideration of the provisions of Section 32(1) (f) of the Juvenile Act of 1973, and acting under Section 3 of the Probation of Offenders Act of 1952, this Court imposes a Probation Order applicable on VILIAME NASAVE QALOKIVUYA operative for 2 years from today. This Probation Order carries the following conditions:

1. You will be under the supervision of the Probation Officer, Department of Social Welfare.
2. You will reside in Nukuloa village.
3. Your probation will be supervised by the Magistrate’s Court, at Suva.
   4. In addition, acting under Section 3 (3) of the Probation of Offenders Act of 1952, this Court directs you to report to the Qarani Police Post on every first Saturday of every month.
   5. If you fail to comply with the directions stipulated in this Probation Order or commit another offence, you will be liable to be sentenced for the original offence.
      

The accused has been explained of these conditions in open Court.

.......................................

Justice Dr. Thushara Kumarage

At Suva

23^rd February 202