State v Rogers [2010] FJMC 177; CRC 1498.2009 (29 December 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA
(Under Extended Criminal Jurisdiction)

Criminal Case No: 1498 of 2009

STATE

V

1. JOSUA BENJAMIN ROGERS
2. ISEI KORODRAU
3. OSEA VAKACEREIVALU
4. JOSEPH NONU

For Prosecution: Ms. Daru (DPP Office)
For first Accused : Mr. Sharma (Duty Solicitor – LAC)

SENTENCE
(For the first accused Josua Banjamin Rogers )

1. You, JOSUA BENJAMIN ROGERS are here, today to be sentenced on admission of guilt on your own accord for the two counts of “Robbery with Violence”, an offence punishable under sec. 293 (1) (b) of the Penal Code (Cap 17).
   
2. According to the count one, on 19th November 2009, you with three others have robbed one Krishna Kumari Narayan and total value of the stolen goods is $10,365. According to the count two, on the same day with same partners you have robbed one Reshmi Kiran Shankar and total value of the stolen goods is $600.
   
3. You were produced before this Court for the first time on 23rd November 2009, and on 08th February 2010, all charges were read and explained in the open court. You plead not guilty for all the counts against you. On 14th September 2010, you indicated to the Court through a duty solicitor that you are willing to plead guilty to the charges against you. By then, you have been convicted by the High Court for a similar offence.
   
4. On 27th September 2010, amended charges were read out and explained to you in the presence of your counsel. You plead guilty to the both counts. You admit the summary of facts read out to you.
   
5. According to the summary of facts (which you have admitted), on 19th November 2009 at about 10.45 am, with others you have entered the Nacara Food mart (which is the shop and home for both complainants) by forcefully opening the grilled door to that shop. You were armed with an iron rod.
   
6. You with others threatened the complainants to refrain from shouting and subsequently taped the mouths and hands of them. Before that you have pulled Krishna Narayan by her hair. Thereafter, you with others demanded gold and cash from both complainants one of them was a middle aged woman (50 years old) and other was a young woman (29 years old). Upon searching the shop and complainants, you and others managed to steal $3000 cash, assorted liquor valued at $2000, Cigarettes for $1300, recharge cards valued at $65, gold chain valued at $2000 and 03 gold bangles valued at $2000 from Krishna Narayan. Thereafter all of you managed to remove a gold chain valued at $600 from Reshmi Shankar.
   
7. Maximum sentence prescribed for the offence under Sec. 293 (1) (b) is “life imprisonment”.
   

Seriousness of the offence and aggravating factors

8. According to Justice Goundar in The State v. Sakiusa Rokonabete and three others (Criminal Case No. HAC 118 of 2007 Suva, 15th September 2008), aggravating factors, such as, Group offending, planned acts, vulnerable victim, value of the items taken and using of weapons, would invariably invite for a higher starting point in sentencing. In The State v. Timoci Delana [HAC 190 of 2008, 108, 113 and 126 of 2009 on 01st February 2010], Justice Goundar emphasised the above-mentioned facts as aggravating factors.
   
9. According to the Court of Appeal Judgment by Sheppard JA, Gallen JA and Ellis JA in Singh v. State {[2004] FJCA 8; AAU0008.2000S (19th March 2004)}, “‘robbery with violence’ either actual or threatened will always give rise to serious consequences”. Following factors have considered as guidelines in sentencing.
   
   1. The extent of the loss arising from the criminal action.
      
   2. Vulnerability of the victim and the effect of them and their lives.
      
   3. Subsequent behaviour.
      
   4. Previous criminal record of the offender.
      
   5. Remorse (remorse expressed afterwards how genuine cannot carry as much weight)
      
10. Number of decisions of court have emphasized that it is appropriate to follow English guidelines for the offence of “Robbery with Violence” since both English and Fijian system carries ‘life imprisonment’ as the maximum penalty. (Basa v. State [2006] Cr. App. AAU. 24/05, 24 March 2006, State v. Vakararawa [2008] FJHC 114; HAC047.2006, 3 June 2008). In R v. Turner 61 Cr. App. R. 67, it was held that “previous good character is not a strong mitigating factor although repeated offenders should be sentenced more heavily than first offenders”.
    

Repeat offender

11. In Viliame Cavuilagi v. State, Crim. App. HAA 0031 of 2004 Winter J has made following comments regarding a repeat offender.
    

“Repetitive, recidivist of offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law-abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime”.

12. According to Goundar J in State v. Vakararawa [2008] FJHC 114, “the dominant factor in assessing seriousness of any type of robbery is the degree of force used or threatened”.
    
13. Very recently Goundar J in State v. Raymond Johnson [2010] FJHC 391 on 10th September 2010, re-iterated the seriousness of home invasion robberies and commented regarding tariff as follows:
    

“The current sentencing practices and guidelines for robbery with violence have been set out in cases such as State v. Basa Criminal Appeal No: AAU0024 of 2005 (24 March 2006); Wainiqolo v. The State [2006] FJCA 70; AAU0027.2006 (24 November 2006) and State v. Rokonabete & Ors. [2008] FJHC 226; HAC118.2007 (15 September 2008). These cases indicate the sentences for organized gang robberies range from 8 years to 14 years imprisonment." [Emphasis mine]

14. His lordship went on to say...
    

"Home invasion robbery is a serious offence. People take shelter and security in their homes. Robberies in homes instil fear in the community. In this country people live in homes like prisons with iron grills and padlocks on windows and doors. Yet they get invaded by offenders who have no regard for the law and order."

"Home invasion robbery is too prevalent in our community and perpetrators of this offence must expect condign punishment. The court has a duty to protect the public by imposing punishment that will deter this kind of offending."

15. Sentencing Guidelines are now clearly set out in Sentencing and Penalties Decree 2009. According to sec. 4:
    

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.

(3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to —

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including —

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

16. Considering the facts of the case and above-mentioned guideline judgments, I set my starting point of sentencing for 08 years which is at the lowest end of the tariff scale for organized gang robberies.
    
17. You plead guilty to the charge. According to a very recent Judgment delivered by Justice Thurairaja in Josua Natakuru Nalatu v. The State [Crim. Appeal No. HAA 058 of 2010], on 09th December 2010:
    

"There is no hard and fast rule, that the early guilty plea should be given 1/3 discount. As I discussed in many other cases previously the deduction is completely in the hands of the trial judges. They may consider the facts of the case and all other circumstances and decide the period of deductions".

18. Your guilty plea is not an early guilty plea. Apart from the mitigation submission filed by your counsel, you chose to file separate mitigation submissions purported to be in your handwriting. In that submission you mentioned as follows:
    

"Your worship, I am at the moment a serving prisoner at the "Suva Prisons" and since being convicted on another matter, it was my only desire that I put all my cases together to clear myself from all pending files"

19. When considering the above-mentioned statement, it is clear that your only intention was to get all pending files disposed in view of a concurrent sentence to the present serving term. However, to reflect your guilty plea I reduce 01 year from your sentence.
    
20. According to the mitigation submissions filed on behalf of you (undoubtedly with the instructions received from you), you was with your friends whist they were planning the robbery and you were influenced by them as you were in desperate need of money to provide for the needs of your family.
    
21. This submission made it clear that this robbery was a pre-planned crime.
    

Aggravating facts

22. Following facts are considered as aggravating facts.
    

i. Group offending

ii. Armed with weapons

iii. Pre-planned crime

iv. Place you robbed is owned by Krishna Narayan and she was living in that place.

v. Victims were unarmed women and one is 50 years old.

vi. You and others have pulled the elderly woman by her hair and taped the mouths and hands of those vulnerable women.

vii. All accused persons are well built youth committed this crime against vulnerable, unarmed victims.

viii. Day light robbery committed at about 10.45 in the fore noon.

ix. Value of the stolen items.

x. Fear instilled and trauma encountered by the victims.

23. Considering these aggravating facts, I add 03 years to your sentence.
    

Mitigating facts

24. Counsel appeared on behalf you filed an extensive written submission for mitigation. Apart from that you have sought to file your own submission. Following facts mentioned.
    

i. Accused 23 years old

ii. Only been educated till form 4.

iii. Currently serving a 07 year prison term for a robber with violence case.

iv. Married

v. Comes from a broken family as parents separated when he was in form 4

vi. Pleaded guilty to show his remorse

vii. Being a serving prisoner had a major impact in life.

viii. Realised that his deeds has brought noting but pain and bitterness.

ix. Determine to change the life style.

x. Sought leniency and concurrent sentence to the present serving term.

25. To reflect the mitigation and the period you spent in remand for this case I reduce 2 years from your sentence.
    
26. You sentence now stands for 08 years imprisonment. I order 04 years of your sentence to run concurrent to the present serving term and the remaining four years to run consecutive to the present serving term. As per requirements of sec. 18(1) of the Sentencing and Penalties Decree 2009, I fix a non-parole period for six years. After you serve mandatory 06 years imprisonment, the prison authority is allowed to consider whether it is suitable to release you before 08 years term you have been imprisoned by this Court.
    

Reasons for part concurrent sentence

27. It has become practice amongst the repeat offenders to plead guilty to all the pending cases against their name once they have been convicted for a considerable period of time. Until such time, irrespective of the time those cases dragged on before the Court, such repeat offenders maintain not guilty plea. As long as such offenders are out on bail, they keep on committing further offences.
    
28. Accused in this case is also a repeat offender and before he pleads guilty to this case he was convicted for 07 years imprisonment for "Robbery with Violence" case.
    
29. When accused pleads guilty he confirms the prosecution's version of the case and admits the allegation levelled against his name. The question is did he not know that he was guilty on the first date he was produced before the court. Why he waited till he receive a conviction for a considerable period of time in one case, to plead guilty to all the other cases pending against him?
    
30. I am of the view that Courts are duty bound to consider the rights of the innocent victims in the same way Courts are showing mercy towards the accused persons.
    
31. Sentences imposed by Courts always should reflect the gravity of the offence and as per sec. 4(1) (a) of the Sentencing and Penalties Decree 2009 the term imposed by the Court should be adequate to punish offenders to an extent and in a manner which is just in all the circumstances.
    
32. If a repeat offender is allowed to go home serving one jail term for all the offences he committed simply because he choose to plead guilty after he got convicted for a considerable period of time, as Judicial Officers, I am of the view that we are failing in our duty towards the victims as well as to the society.
    
33. A repeat offender must realize the taste of punishment in the same manner he enjoyed his time committing crimes on the innocent people.
    
34. 28 days to appeal.
    

On this Wednesday the 29th day of December 2010

Kaweendra Nanayakkara
Resident Magistrate