State v Tamanivalu [2010] FJMC 180; Juvenile Case 07 of 2010 (23 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Juvenile Case No: - 07/2010

STATE

V

TANIELA TAMANIVALU

For Prosecution : - P.C.Farook.
Accused : - Mrs. Karan R.

SENTENCE

1. You TANIELA TAMANIVALU, were found guilty by this court, for the offence of Robbery punishable under section 310 (1) (a) (1) of the Crimes Decree No 44 of 2009 entailed a punishment up to 10 years of imprisonment.
   
2. I found you guilty for the offence of Robbery consequent upon your "pleas of guilty' to the charges on 15th of July 2010 after the Court was satisfied 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 was committed on 5th day of February 2010.
   
4. Further, the summery of facts revealed, that you accompanying with another approached Mr. Ravikant Singh who was on his way back from Squash training along Rewa Street. You came behind him and grabbed hold his bag, searched his trouser pocket and stole Black and Red bag valued at $ 200, a squash racket valued at $ 300, squash shoes valued at $ 100, Sport cloths valued at $ 40, Quick Silver leather wallet valued at $ 80, cash of $ 15, Nokia mobile phone valued at $ 600. While you were talking these items from the Mr. Ravikant Singh, your accomplice grabbed hold of the hands of Mr. Ravikant Singh so that he was unable to move and threatened not to shout or else will get a punch. After robbing Mr. Ravikant, you and your accomplice fled into the bushes in Brown Street.
   
5. This case involved a planed robbery. The aggravating factors are that the crime that you committed is a prevalent in the society. It is a compelling factor to consider that this kind of crimes have turn law abiding citizen into prisoners in their own society where they are not able to freely enjoy their freedom of movement and life.
   
6. At this point I direct myself to consider appropriate punishment on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree and the section 20, 30 and 32 of the Juvenile Act.
   
7. Tariff for simple larceny is 6 months to 12 months imprisonment. ( Kaloumaira v State ( 2008) FJHC 63), (Manasa Lesuma v State 2004, FJHC 490). It was held in Tikoitoga v State (2008, FJHC 44, HAM088.2007, 18th March 2008), that the tariff for larceny is 18 months to 3 years. Shameem J held in Vaniqi v State (2008, FJHC 348,HAA080.2008) that tariff for simple larceny with previous conviction of a felony to be over 9 months.
   
8. The tariff for the offence of Escape from lawful custody under section 138 of the then Penal Code Act 17 is between 6 – 12 months ( Isirel Rokovucago v Regina HAA 22/80), Shameem J held in Kinijoji Vuda v State (2006, HAA 006/06S 24th March 2006) that sentence of between 6-8 months have been approved by the High Court for escape. 3 months was lenient.
   
9. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of the summery of facts and mitigation submission of the learned counsel for the Juvenile, sufficiently directed me to determine an appropriate starting point for you. In line above sentencing gung guidelines and principles, I select 2 years imprisonment period as a starting point.
   
10. The impact of the othe offence on the victim must be a disappointing and frustrating experience as he was suddenly found that his right of freedom and right of property was violated. The victim must be feeling his insecurity and vulnerability of increasing crime rate in the society.
    
11. You planned the act of theft upon the available opportunity and acted to fulfill your criminal intention. Your act of offence could have the effect of endangering innocent citizen. You demonstrated that you have no respect and regard for other's rights and freedom.
    
12. I now draw my attention to address the mitigatory factors in your favors.
    
    1. You are under the age of 17 at the time of committing this offence,
    2. Express remorsefulness and promise not to re offended,
    3. Seek another chance,
    4. Early plea,
    5. Time spend in boy center,
       
13. I now draw my attention to the social back ground report of you, submitted by the Social Welfare officer. It clearly indicated, that you are habitually involve in crimes and trouble despite several attempts by the social welfare officers and leniency extended by the court towards you to changing your behaviors.
    
14. The Social welfare officer recommended that you are a threat to the community and your parent or guardians are not showing enough enthusiasm and dedication to involve in your reform process. The court itself tried to involve your parent constructively in reforming you. Unfortunately, their interest and enthusiasm shown to this effort is minimal due to the reason better known to them.
    
15. At this point, I highlighted the judicial responsibility of this court as a paramount guardian of the juvenile to consider the best interest of juvenile in punishment for the offence he found guilty.
    
16. In view of aforementioned aggravating factors I increase 2 years, to reach the period of 4 years. In considering your early guilty plea I reduce 1 year and for other mitigatory factors, I reduce another one years to reach the period of 2 year. Now your sentence reaches to 2 year imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.
    
17. At this point, I draw my attention to the finding of Nawana J in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) where his lordship Nawana J held "I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' -e people would tempt to coto commit serious offences once in life under the firm belief that they would not get imprisonmencusto they are first offenders. The resultant position is that the society is pervadedvaded with with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule".
    
18. Moreover, I am compelling to give a lot of weight to the recommendation of the Social Welfare report on you as they closely observe your behaviors and your social back ground. I am of the view, that organize rehabilitation process will be able to reform you into a better citizen of this country by giving you vocational training, spiritual guidance and confidence with recognition in future.
    
19. In view of the abovementioned factors and findings of Nawana J in above paragraph, I do not find any compelling reason to suspend your sentence.
    
20. Accordingly, I sentence you two year imprisonment period for the three counts of offence of Theft contrary to section 291 of the Crimes Decree 44 of 2009 and offence of escape from lawful custody contrary to section 196 of the Crimes Decree No 44 of 2009 to be serve in Nasinu Prison center with training facilities and commencing from 23rd of September 2010, Further in term of section 18 (3) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 18 months.
    
21. 28 days to appeal.
    

On this 23rd day of September 2010.

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