State v Mistry [2010] FJMC 19; Criminal Case 1358 of 2009 (29 March 2010)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 1358 of 2009

STATE

V

MAIKELI MISTRY
(Second Accused)

For Prosecution: Insp. Harish
For the second accused: Mr. Waqaivolavola

SENTENCE

1. You, MAIKELI MISTRY, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

Count 1 & 2: Robbery with Violence

Count 3: Resisting Arrest

2. According to the facts, (which you have admitted), on 18th October 2009, you with the first accused had assaulted the PW-1 and did steal $10 in the process. PW-2 who came to the rescue of PW-1 was also got assaulted by both of you. It is alleged that you stole a pair of flip-flops valued at $7. Upon arrival of PW-3 both of you have fled from the scene.

3. Maximum penalty could be imposed on count one (as per sec. 293 (1) (b) of the Penal Code) is life imprisonment and for the count three, it is five years imprisonment.

4. The tariff for the ‘Robbery with violence’ is 4 to 8 years imprisonment. 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. Tariff for ‘Resisting arrest’ is 06 months to one-year imprisonment.

Aggravating Factors of the offence

5. Following facts were revealed by the summary of facts placed before court and will be considered as aggravating factors.

- Gang activity

- Assault without any provocation

6. Robberies with violence offences are prevalent in Fiji. Always innocent and unarmed people had been the target of the offenders. Sometimes one may want to inquire as to the reason for committing such crimes because the values of the robbed items are almost insignificant and it is difficult to explain the need to use personal violence on the victim. This case is a classic example for such a meaningless crime. I am sure that you also would find it difficult to explain your actions. According to my view, you have committed this crime with the other accused, for no other reason but for fun.

7. You plead guilty for the charges. However, it is not an early guilty plea. Therefore, you are not entitle for a 1/3 reduction of your sentence.

8. Considering above-mentioned reasons as aggravating facts, I set my starting point of sentencing for 04 years imprisonment.

Mitigating Factors

9. In mitigation, your counsel drew the attention of the court to the value of the robbed items. Apart form that he said that you are remorseful and the police assaulted you. You worked as a casual worker at Public workers department. You are a first offender and young offender. You want to reconcile with the victim. You were brought up from a broken marriage.

10. Your counsel urged the court to act according to the guidelines set out in sec. 45(2) of the Sentencing and Penalty Decree 2009 and to impose a two years good behaviour bond instead of recording a conviction. He informed the court that a sentence would affect your rugby career as you are playing professional rugby.

11. Even though you mentioned that you are remorseful of your action, I find that so far you have not offered any kind of apology to the victims. If you are genuinely remorseful, you have had enough time to do so. Apart from that when referring the case record I find that you have never mentioned the fact that you were beaten by the police when you were produced to the court or anytime after that until you mentioned it as a mitigating factor.

12. To reflect the mitigating facts mentioned by your counsel I reduce one year from your sentence and for your late guilty plea, I reduce another 06 months.

13. You have no previous convictions. To reflect your previous good behaviour I reduce another 06 months from your sentence.

14. Your total sentence now stands for two years imprisonment. I am mindful of the fact that a sentences, which are two years and below could be suspended.

15. You are a first offender. Hence, I am of the view that a custodial sentence is inappropriate. Courts always have bent backward to save first offenders from custodial sentences. Re: Moses Nariva v. The State (Cr. App. HAA 148/ 2005).

16. It is important to see whether it is appropriate to impose a good behaviour bond instead of recording a conviction.

17. I do not believe that you are genuinely remorseful for your actions. However, I am of the view that every person should be given a second chance in their lives to correct themselves from the mistakes they have done. Courts are not there to ruin lives of people for foolish mistakes. However, always the punishment imposed upon an offender should reflect the gravity of the offence and it should carry an adequate warning for them to treat their criminal propensities with caution.

18. Considering your counsels submission, I am satisfied that it is appropriate to act under the sec. 45(2) of the Sentencing and Penalties Decree 2009. Following the guidelines set-out in the section, I proceed to adjourn the proceedings for 03 years. Thereby, you are bound over for sum of $2500 for next 03 years to maintain good behaviour. You are further warned that if you commit any offence during this three years period you are liable to pay the above-mentioned bond to the court. You are hereby released, upon your undertaking to maintain good behaviour for three years subjected to following conditions.

19. You are ordered to submit an "all clear report" to the court from the nearest police station at the end of the every year for three years until such time your bond cease to operate. Senior Court Officer will notify you of the next date on which you should be present in the court at the expiration of the three year period.

20. You are further ordered to pay $100 each for PW-1 and for PW-2 as compensation. (Altogether $200). In default of payment, you are sentenced to one-month imprisonment. 28 days to pay.

21. 28 days to appeal.

On this Monday the 29th day of March 2010

Kaweendra Nanayakkara
Resident Magistrate