State v Cava [2001] FJLawRp 30; [2001] 1 FLR 150 (19 April 2001)

STATE v ILAISA SOUSOU CAVA

High Court Criminal Jurisdiction

18, 19 April 2001

HAC 007/00S

Robbery with violence - sentence –range of sentences in England and New Zealand compared with Fiji – guidelines for sentencing discussed – aggravating and mitigating factors – masked and armed men wielding weapons - prevalence of offence – duty of courts to pass a sentence which reflects the gravity of such offending - Penal Code s293(1)

Four masked men, armed with cane knives, drove up to a jewellery store in a stolen motor-vehicle, parked it adjacent to the shop, and entered the shop through the front door. They threatened the two female shop assistants, broke the display cabinet and took assorted jewellery. The Defendant with others broke the shop window glass and escaped in the stolen vehicle. The Defendant pleaded guilty. The Court assessed the tariff for an offence of robbery with violence at 4-7 years. It considered a range of English and New Zealand cases, and found the Court of Appeal considers the New Zealand guidelines for robbery with violence relevant for Fiji. The offence is also prevalent in Fiji, and there is a duty on the court to pass a sentence which reflects the gravity of such offending. It is of particular importance that the owner of shops which are vulnerable to armed attacks, be protected from them. The court took into account the trauma suffered by the shop assistants and the shop owner. The accused in mitigation pointed to his lack of education, the fact that he has been unemployed and is still very young. The Court commented that the offence is a serious one, with a maximum statutory limit of life imprisonment, and was dutibound to pass a sentence which reflects the gravity of such offending, for the protection of shop-owners.

Held – guidelines for sentencing: factors to consider which may mitigate sentence: lack of pre-meditation, minimal role played by offenders, type of weapons used, lack of education, where the offender has no previous convictions, has pleaded guilty and has expressed remorse, unemployment and youth. But plea of youth, previous good character are not relevant. Factors to consider for aggravated circumstances: a higher tariff from six to eight years for use of firearms, but a lower range of four to seven years is appropriate where firearms are not used and the premises robbed are banks, or shops, post offices or service stations, vulnerability of victim to age, infirmity, disability or where children are involved, causing injuries in the course of the robbery, value of property stolen, evidence of planning, multiple offences and previous convictions for similar offences.

In the circumstances, a sentence of 5 years is suitable, but where the accused is presently serving a 3 year sentence, on the totality principle, it is disproportionate, thus 5 years to be served concurrently to present sentence.

[Note: An application to the Court of Appeal for Leave to Appeal out of Time Against Sentence was dismissed on 4 March 2003: ABU 0057/02 per Reddy, J. On 6 November 2003 a Minute of Smellie, J records that when advised by the trial Judge the sentence was to be served concurrently, the Appellant indicated he did not wish to proceed, and thus, the application for Leave to Appeal and Appeal were abandoned and formally dismissed. Foll in Livai Tamanalevu v State [2001] HAA 016 and 027/01S 6 July 2001; appl in Simione Raura v State [2001] HAA0059/01S 5 October 2001]

Cases referred to in Sentence

Apenisa Ralulu v State [1997] AAU 0009/95S Judgment 16 May 1997
Att-Gen's References (No. 3 of 1990) 92 Cr.App.R
Iliaseri Saqasaqa v State Crim. App. 7/99
John Ryland v State [1999] HAA 030/99 15 April 1999
Joseva Lui and 2 Ors v State [1998] AAU 0005/97S 12 February 1998
Maciu Bakani v State [1996] HAC 0014/96 Judgment 23 August 1996
Mosese Balacala v State [2000] HAA 29/00 Judgment 14 July 2000
Nasoni Tamani v State [1999] AAU 0014/98S Judgment 12 November 1999
R v Driscoll 8 Cr.App.R(S) 121
R v Moananui [1983] NZCA 66; (1983) NZLR 537
R v Richardson and Others The Times 10 February 1988
R v Turner (B.J) 61 Cr.App.R. 67
State v Marika Wasa [2000] HAA 33/00 8 September 2000
Suliasi Sivaro v State [1998] AAU 0003B/97 15 May 1998

Filimone Vosarogo for the State

Accused in person

19 April, 2001

SENTENCE

Shameem, J

The Defendant has pleaded guilty to the offence of Robbery with Violence. The charge reads as follows:

Statement of Offence

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

Particulars of Offence

NETANI CAKACAKA, ILAISA SOUSOU CAVA, LEDUA TIKOSAYA CAGILEVU and another on the 20th day of October 1999 at Nausori in the Central Division, robbed DEEPAK LODHIA s/o DHIRU BAI the owner of TULJA JEWELLERS of assorted jewellery to the total value of $6,500.00 and immediately before such robbery threatened the said DEEPAK LODHIA s/o DHIRU BAI with cane knives.

The case against his co-Defendants has been adjourned to another date for trial. The Third Defendant is still at large and under bench warrant.

The facts of the case as outlined by the prosecution are as follows: On the 20th of October 1999 at 10.45am, the Defendant with two others, entered the Tulja Jewellery Shop in Nausori, wearing masks and armed with cane knives. They had come to Nausori from Cunningham Road in a stolen motor-vehicle, had parked it adjacent to the shop, and entered the shop through the front door.

They threatened the shop assistants, two women, and the owner Deepak Lodhia. The assistants were taken to the back of the shop where there is an office. The Defendant, with the others, then broke the show glass in the shop and put assorted jewellery into a bag. The Defendant was unable to leave the shop by the door, and he with others then broke the window glass of the shop and left in the vehicle parked outside.

The jewellery taken was valued at $6,500. No one was injured, although whilst in the shop, the robbers had wielded their cane knives at the shop assistants and the owner.

The Defendant was apprehended on 6th November 1999, and he confessed to the commission of the offence, to the police. He was charged on the 7th of November and remanded until 18th November 1999, when he was granted bail by the Suva Magistrates' Court.

The Defendant's antecedent history shows that he is 20 years old, and is unemployed. His father died in 1990, and he now lives with his mother and stepfather, at Nadonumai, Delainavesi. He was educated to Form 5 level and left school because he did not have the means to continue.

His previous convictions show that he was convicted of Restaurant Breaking and Larceny in 1998, of Drunk Disorderly in 1998, of Unlawful Use of Motor Vehicle in 1999, of Larceny and Driving Vehicle in Contravention of 3rd Party Risks, also in 1999. On 27th February 2001, he was convicted of Office Breaking Entry and Larceny and sentenced to three years imprisonment. He is currently serving that sentence.

In mitigation, the Defendant said that he was 19 years old that he had been brought up by his grandmother after his father's death. He expressed remorse for the commission of the offence, and said that he was unlikely to rehabilitate in prison. He asked for leniency.

I asked State Counsel to provide me with authorities on sentencing for Robbery with Violence, and gave him time to find them. It appears to me that a guideline judgment for offences of Robbery with Violence might be of assistance to the Magistrates' court, and the High Court in approaching sentencing. These guidelines are relevant only to cases of armed robbery. In line with sentencing practice in other countries, guidelines for armed robbery are different from robbery without weapons of, for instance, a handbag or a watch on the street.

England

Under section 8 of the Theft Act 1968, an offence of robbery or of assault with intent to rob, has a maximum sentence of life imprisonment. In R v Turner (B.J) 61 Cr. App. R. 67, the Court of Appeal said that the normal sentence for anyone taking part in a bank robbery or the hold-up of a security van should be 15 years imprisonment, if firearms were carried. Previous good character is not a strong mitigating factor although repeated offenders should be sentenced more heavily than first offenders. For several robberies, the maximum sentence should not normally be more than 18 years unless there are exceptional circumstances.

In R v Driscoll 8 Cr. App. R(S) 121, the Court of Appeal held that where robbery was committed in the course of a burglary, a 15 year prison term was justified for offences of robbery, aggravated burglary and causing grievous harm. The Court said that there was a need to protect elderly people living alone, who were increasingly selected by burglars for such attacks.

In R v Richardson and Others The Times February 10, 1988 sentences of 13 years, 12 years and 11 years youth custody for the Defendants who were of previous good character, and who had taken part in a series of robberies on houses where the victims were asleep but were disturbed and attacked with knives, were held to be right in principle. Ewbank J said that robberies of this nature were so serious that a plea of youth or of previous good character was of little relevance, and that where the victims were old or very young, the sentence would be even longer.

Similarly long prison sentences were held to be proper in the robberies of small shops in Att-Gen's References (No. 3 of 1990) 92 Cr. App. R.

New Zealand

The New Zealand Court of Appeal in R v Moananui [1983] NZCA 66; (1983) NZLR 537, after reviewing cases of armed robberies carried out in banks, shops and post offices, said that such cases attracted sentences of six to eight years imprisonment. Aggravated robberies in dwelling-houses which involved smaller members of victims but invariably resulted in a gross invasion of person privacy, attracted sentences of four to six years. A review of the cases showed that the use of weapons, the vulnerability of the victims, and the infliction of injuries increased the sentence. Lack of pre-meditation and minimal roles played by some offenders may mitigate the sentence.

Fiji

Cases referred to me by State Counsel are as follows:

1. Apenisa Ralulu v The State Crim. App. AAU009/1995S. The offender pleaded guilty to Robbery with Violence on three counts. He used a cane knife and pinch bar to threaten the victims in a supermarket. A total of $3750 was taken from the till. No injuries were caused. The Court of appeal confirmed a total sentence of 8 years imprisonment.

2. Maciu Bakani v The State Crim. App. No. 14/96 (High Court). A sentence of 5 years imprisonment imposed by the Magistrates' Court, was reduced by Fatiaki J to 2 years on the ground that the offender was already serving a lengthy term of imprisonment. The offender had been armed with a cane knife and pinch bar and had robbed a supermarket of $4025.00.

3. Suliasi Sivaro v The State Crim. App. No. AAU0003/B of 1996. The offender had robbed a security van of $48,726.00, threatening the security officers with knives. They were masked. The sentence of 4 years imprisonment was upheld by the Court of Appeal.

4. John Ryland v The State Crim. App. No. HAA 030 of 1999. The offender was sentenced to 4 years imprisonment on his plea of guilty. The robbery was at a dwelling house at night, and the owners of the house were assaulted. $1,470.00 was stolen. The Appellant had a previous conviction for a similar offence. The sentence was upheld, as was the activation of a suspended sentence of 9 months.

5. Mosese Balacala v The State Crim. App. No. 29/2000. The Appellant was sentenced to 3 years imprisonment on his own plea of guilty. He had robbed a family shop of $112.00 whilst armed with a cane knife. The victim, a woman, was punched on the face and body. The offender was 19 years old and a first offender. The sentence was reduced by the High Court because of the offender's youth, and plea of guilty, to 2½ years imprisonment.

6. State v Marika Wasa Crim. App. No. 33/2000. The offender was sentenced by the Magistrates' Court to be bound over to keep the peace, for robbing a shop owner of $200. He had held her by the hair and threatened to "cut her with a knife" in the shop. The High Court substituted the binding over with a suspended sentence of 18 months imprisonment.

In Joseva Lui and Others v The State Crim. Appeal No. AAU0005/97S, the Fiji Court of Appeal, found on facts very similar to those in the case before me, that sentences of 8 and 9 years imprisonment were excessive and reduced them to 6 years, 7 years and 5 years and 9 months respectively for the three offenders. The offenders were armed with cane knives and a hammer, they entered a jeweller's shop, no one was injured although the occupants of the shop were frightened, and the jewellery stolen was valued at $50,000. The jewellery was recovered, and the offenders pleaded guilty at the first opportunity in the Magistrates' Court.

On the cases cited before the court in Lui (supra), the trend appeared to suggest that sentences ranged from two years to seven years, with a sentence of 9 years imprisonment being reduced to 7 years in Iliaseri Saqasaqa v The State Crim. App. No. 7 of 1993, where the offender had a long list of previous conviction, and where the offenders had been armed with a knife, a pinch bar and wire.

Reducing the sentences, saying that the sentencing Judge had not given sufficient credit for the guilty pleas and the expressed remorse, the Court of Appeal said:

"If the meagre available evidence of sentencing levels for robbery with violence is any guide, then in our view, those current levels appear too low. As with most crimes, there are gradations of seriousness. A helpful summary with a review of sentencing patterns and a list of actual sentences can be found in the decision of the New Zealand Court of Appeal in R v Moananui (1983) NZLR.

The State Prosecution Service ought to be encouraged to prepare a data base along the lines of that found in the Moananui judgment for the guidance of Magistrates and Judges. It will be seen from the Moananui judgment that sentences for aggravated robbery in New Zealand rarely go below 4 years.

If as the learned Judge in the present case indicated, robbery with violence is becoming increasingly common in this country, then the courts ought to develop principled sentencing patterns for dealing with the problem."

In Nasoni Tamani v The State Crim. Appeal No. AAU004 of 1998S, the Court of Appeal considered an appeal against a sentence of 8 years imprisonment for armed robbery. The arms used included a firearm and a cane knife, and the robbery was of $3000 case from an ANZ Bank branch. There was no guilty plea, and the Appellant himself had been armed with a cane knife. The appeal against the sentence was dismissed, the Court saying that the sentencing Judge had correctly considered the sentencing guidelines in Lui & Others v State (supra) and Moananui (supra).

Guidelines

Considering these authorities, the Court of Appeal clearly considers the New Zealand guidelines for Robbery with Violence to be of particular relevance for Fiji.

Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises robbed are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences, should be considered aggravating features.

The sentence may be reduced where the offender has no previous convictions, has pleaded guilty and has expressed remorse.

This list of aggravating and mitigating features are by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case.

This Case

Applying the above principles to the present case, a sentence in the range of four to seven years is appropriate. The shop which was robbed was a jewellery shop, and the weapons used were cane knives which were wielded but not used.

I take into account the trauma which was undoubtedly suffered by the shop assistants and the shop owner, as a result of the robbery. The facts of the case indicate that all persons were equally involved in the enterprise. Furthermore none of the jewellery was recovered.

I have also considered the mitigation advanced by the Defendant, his lack of education, the fact that he has been unemployed and is still very young. I take into account his guilty plea, and the remorse he has expressed. I also disregard all but the most recent of his previous convictions (which is for Office Breaking Entering and Larceny) for the purpose of sentence.

This offence is a serious one, with a maximum statutory limit of life imprisonment. The offence is also prevalent in Fiji, and there is a duty on the court to pass a sentence which reflects the gravity of such offending. It is of particular importance that the owner of shops which are vulnerable to armed attacks, be protected from them.

Taking all these matters into account, and after giving the Defendant credit for his guilty plea, I sentence him to five years imprisonment. The sentence he is currently serving is three years imprisonment from February 2001. On the totality principle, I find that the total of 8 years imprisonment to be disproportionately long, and I order that the sentence of five years imprisonment be served concurrent to his present term of imprisonment.

Sentence of 5 years imprisonment imposed, concurrent to present term.

Marie Chan