State v Sarai [2010] FJMC 139; CRC278.2010 (30 November 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 278/2010

STATE

V

ILAITIA SARAI

For Prosecution: - Ms.Drau. R.
2nd and 3rd Accused: - In persons

SENTENCE

1. You ILAITIA SARAI, was convicted by this court, for the offence of Robbery with violence, which is punishable under Section 293 (1) of the Penal Code Act 17, entailed a punishment up to life imprisonment.
   
2. The conviction was entered before my brother Magistrate Mr. Nanayakkara consequent upon your "pleas of guilty' on 7th of June 2010. I am satisfied that that you fully comprehended the legal effects and that your plea was voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that the offence of Robbery with Violence was committed on Mrs. Radhika Lata a cashier of Veejay Enterprises Ltd, a supermarket of Tokotoko, Navua.
   
4. Further, the summery of facts revealed, that the said Mrs. Radhika Lata was behind the counter of the above supermarket where the cash register sits serving the customers when you walked into the supermarket with a cane knife covering your face. You demanded to open the cash register. You hit the shopping basket inside the supermarket with your cane knife and then banged the cane knife on top of the shop counter. Subsequently you jumped behind the counter and stole telephone recharge cards value of $ 2195.
   
5. The learned, State Counsel, submitted in her sentencing submission that the case involved a shop invasion type of robbery. The learned state counsel further suggested in her submission the aggravating factors are that the accused person is adversely recorded with a total of 4 previous convictions, the accused was armed with a cane knife, property worth of $ 2,195 was stolen, Pre meditated plan robbery, the fear instilled and trauma encountered by the complainant was vulnerable, and accused had committed this offence during the operation period for a suspended sentence imposed on him according to the previous conviction record of the accused.
   
6. The learned state counsel drew my attention that the tariff as set out in " State v Isei Turagakule and Manasa Volau (057 of 2008) for the offence of Robbery with violence is 6-8 years imprisonment.
   
7. This is a case involved a planed shop invasion robbery which was committed at open supermarket in day time, there was a cane knife used to threaten the victim, the total amount of property stolen is $ 2195. The offences of robbery with violence are becoming a serious problem and warranted a great judicial intervention with responsibility.
   
8. You made a plea in mitigation on behalf of you before my brother magistrate Mr. Jude Nanayakkara which I now take into consideration. You were apologetic for the offence committed and corporative with the police during the investigation.
   
9. At this point I now proceed to direct myself to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
10. The offences involving violence robberies are prevalent crime in the society and it's made the entire country into an insecure and vulnerable place. The purpose of sentencing you for the offence of robbery with violence in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, to establish conditions to facilitate or promote the rehabilitation of the offenders and more importantly the to signify that the court and the community denounce the commission of such offences
    
11. Justice Shameem in Seseu v State 2003, FJHC 224, HAM0043J, 2003S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem in Sakiusa Basa vs Sthe State (Criminal Appeal AAU005), held that "'Sentences for robberies involving firearms should rangm six to eight years. A lower range of four to seven years is appropriate where fire firearms are not used and the premises 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 is by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case'
    
12. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010), has summarized the guiding principles in sentencing in cases involving ry. The:' From these authorities, the following ping principles emerge. The dominant factoractor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of items taken and the fact that an offence was committed whilst the offender was on bail.
    

The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved.

13. His Lordship Justice Madigan in State v Rasaqio [2010] FJHC 287; HAC 155/2007, observed that the normal range of sentence for robbery with violence is now 10 to 16 years in the High Court
    
14. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of the sentencing submission of the state counsel and the mitigation submission of you, I now move to draw my attention to determine an appropriate starting point for you. This is planned shop invasion robbery at a Supermarket in broad day light using a cane knife. In line with above sentencing guidelines and principles, I select 7 years imprisonment period as a starting point.
    
15. You committed this offence in a Public place at a supermarket in broad day light. I find this is a well calculated planned robbery. You carried out your pre-planned robbery in most scandalous manner. You, are not a first offender, wherefore, I disregard your previous good behaviors.
    
16. The impact of the offence on the victims must be a horrified experience as they were suddenly surrounded by you with a cane knife and threaten and robbed. This dreadful experience definitely remains with them in rest of their lives. You inflicted violence and robbed them while they were shedding their labor in their employment.
    
17. Your act of offence could have the negative impact of endangering innocent public and their freedom of life. The violence acts in this nature definitely negate the concept of free society. I have to give much consideration for the vulnerable position of the complainant who was a shop attendant, they are much expose to this kind of violence robberies as they have to perform their duties with money and property in open environment.
    
18. You demonstrated that you have no respect and regard for other's rights and freedom. You completely disregarded the law and order and utilize the vulnerability and insecurity of the victims to carry out your criminal act.
    
19. I now draw my attention to address the mitigatory factors in your favors.
    
    1. You are a 38 years old unemployed,
    2. Apologetic,
    3. Promise not to re offend,
    4. Cooperated with the police in investigation,
       
20. In view of aforementioned aggravating factors I increase 5 years, to reach the period of 12 years. In considering your early guilty plea I reduce 3 years and in view of other mitigatory factors, I reduce 5 years to reach the period of 4 years. Furthermore, I reduce 2 months for the period you were in remand prior to this sentence according to the section 24 of the Sentencing and Penalties Decree. Your sentence now reaches to 46 months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is above two years could not be suspended by this court.
    
21. Accordingly, I sentence you for 46 months imprisonment period for the offences of Robbery with violence contrary to section 293 (1) of the Penal Code Act 17. Further in term of section 18 (1) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 3 years.
    
22. 28 days to appeal.
    

On this 30th day of November 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.