State v Nabati - Sentence [2022] FJHC 88; HAC124.2021 (23 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 124 OF 2021

STATE

V

ILIANA DRAU NABATI

Counsel : Ms. S. Swastika for the State.
: Ms. E. Radrole for the Accused.

Date of Submissions : 22 February, 2022

Date of Sentence : 23 February, 2022

SENTENCE

1. The accused is charged with the following information filed by the Director of Public Prosecutions dated 21^st December, 2021:
   

Statement of Offence

ATTEMPTED AGGRAVATED ROBBERY: Contrary to section 44 (1) and 311(1) (b) of the Crimes Act 2009.

Particulars of Offence

ILIANA DRAU NABATI on the 6^th day of November, 2021 at Sigatoka, in the Western Division, being armed with an offensive weapon namely a razor blade attempted to rob SUNIT SHAN CHAUDARY.

2. On 21^st January, 2022, the accused pleaded guilty to the above count in the presence of her counsel. Thereafter on 28^th January, 2022 the accused admitted the summary of facts read.
   

3. The summary of facts is as follows:

On 6^th of November, 2021 the victim a Taxi Driver was at the Taxi Stand, when he saw the accused crossing over from Westpac Bank (Sigatoka Branch) to where he had parked his taxi.

The accused approached the victim and informed him that she wanted to hire his taxi from Sigatoka Town to Cuvu back road. The victim stated that the fare would be $15.00.

As the accused and the victim approached Cuvu Police Post, the victim noticed that the accused was trying to take something out of her pockets. The victim made a left turn at Naidovi and stopped his taxi.

The victim was waiting for the accused to give the fare when he realized that the accused was leaning towards him and holding a razor blade in her left hand. The accused pointed the razor at the victim and demanded money and stated that she would cut him.

The victim then rushed to the Cuvu Police Post and reported the matter. The accused was arrested immediately and caution interviewed wherein she admitted the allegation.

4. After considering the summary of facts read by the state counsel which was admitted by the accused and upon reading her caution interview this court is satisfied that the accused has entered an unequivocal plea of guilty on her freewill.
   
5. This court is also satisfied that the accused has fully understood the nature of the charge and the consequences of pleading guilty. Furthermore, the summary of facts satisfies all the elements of the offence of attempted aggravated robbery.
   
6. In view of the above, this court finds the accused guilty as charged and she is convicted accordingly. Both counsel filed sentence and mitigation submissions for which this court is grateful.
   
7. The counsel for the accused presented the following mitigation:
   • (a) The accused is a first offender;
   • (b) Was 22 years of age at the time;
   • (c) Takes responsibility of her action;
   • (d) Pleaded guilty at the earliest opportunity;
   • (e) Genuinely remorseful;
   • (f) Cooperated with the police;
   • (g) Seeks forgiveness and mercy of the court;
   • (h) Regrets what she has done;
   • (i) Promises not to reoffend.
     

TARIFF

8. The maximum penalty for the offence of aggravated robbery is 20 years imprisonment. The accepted tariff for this offence is from 8 years to 16 years imprisonment (Wallace Wise vs. The State, CA of 2015 (24 April, 2015).
   
9. However, this is a case of attempting to rob a taxi driver in broad daylight by the accused with a razor blade. The acceptable tariff for the offence of aggravated robbery against providers of public service such as taxi, bus and van drivers is from 4 years to 10 years imprisonment (see Usa vs. State, Criminal Appeal AAU 81 of 2016 (15 May, 2020)
   
10. In accordance with section 44 (1) of the Crimes Act a person convicted of attempt to commit an offence is punishable as if the offence attempted had been committed.
    

AGGRAVATING FACTORS

11. The following aggravating factors are obvious:

(a) Planning

There is some degree of planning involved the accused went from Lautoka to Sigatoka and had made up her mind to rob a taxi driver that day as per the caution interview of the accused.

(b) Victim was unsuspecting and vulnerable

The victim was lured into believing that he was hired to undertake a genuine public service work as part of his usual duty as a service provider but this was not to be. The accused was bold and undeterred in what she did.

(c) Breach of Trust

The victim was carrying on his usual public service duty in taking the accused from Sigatoka Town to Cuvu back road as requested. The accused by doing what she did breached the trust of the victim as a passenger who had hired his taxi.

(d) Prevalence of the offence

This type of offending has become very prevalent nowadays offenders are preying on innocent public service providers for easy money.

DETERMINATION

12. Considering the objective seriousness of the offence committed I select 4 years imprisonment (lower range of the tariff) as the starting point of the sentence. The sentence is increased for the aggravating factors and reduced for mitigation and good character since the accused is a first offender. I also note that the accused has entered an early guilty plea, which I accept is a sign of genuine remorse. The sentence is further reduced in this respect.

13. I also note from the court file that the accused was remanded for 3 months and 16 days. In exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 4 months as a period of imprisonment already served. The final sentence is 4 years imprisonment.
    
14. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offence attempted on the victim compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
15. Under section 18 (1) of the Sentencing and Penalties Act (as amended), a non-parole period will be imposed to act as a deterrent to the others and for the protection of the community as well. On the other hand this court cannot ignore the fact that the accused whilst being punished should be accorded every opportunity to undergo rehabilitation. A non-parole period too close to the final sentence will not be justified for this reason.
    
16. The non-parole period in this case will not be within the current sentencing trend and/or tariff since there are special circumstances or special reasons in favour of the accused which need to be taken into account.
    
17. The accused is a young offender (was 22 years at the time), an isolated offence wasitted by her, pleaded guilty at the earliest opportunity, ity, is genuinely remorseful, cooperated with police and she takes full responsibility of her actions. These special reasons weigh in favour of the accused.
    
Considering the above, I impose 2 years and 6 months imprisonment as a arole period to be served before the accused is eligible fole for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused and also meet the expectations of the community which is just in the circumstances of this case.

19. In summary the accused is sentenced to 4 years imprisonment with a non-parole period 2 years and 6 months to be served before the accused is eligible for parole.
    
20. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
23 February, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.