State Votea [2010] FJMC 196; HAC091.2011 (16 June 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case HAC No: - 091/2011

STATE

V

ONISIMO TAUCILAGI VOTEA,
MICHAEL JONES QORINIASI,
ERONI DERA,
TOMASI DAUVOSOTA.

For Prosecution: - Mr. Fotofili L,
1st, 2nd, 3rd Accused Persons: - In persons
4th Accused:- Ms. Rigsby.

SENTENCE

1. You ONISIMO TAUCILAGI VOTEA, MICHAEL JONES QORINIASI,ERONI DERA,TOMASI DAUVOSOTA, were convicted by this court, for the offence of 'Aggravated Robbery', which is punishable under Section 311 (1) (a) of the Crimes Decree No 44 of 2009, entailed a punishment up to 20 years of imprisonment.
   
2. The conviction was entered consequent upon your "pleas of guilty' on 20th of April 2011 and 26thay 2011. I am satisfied that all of you fully comprehended nded the legal effects and that your pleas were voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that the offence of 'Aggravated Robbery' was committed on Mrs Anna Nazeranko on 18th day of March 2011 at Grantham Road, Raiwai.
   
4. Further, the summery of facts revealed, that four of you approached the victim and tried to pull her laptop bag which she was carrying when she was walking home along Grantham road from the University of South Pacific. The victim is a Russian national and studying at the University of South Pacific. When her laptop bag was pulled by the accused persons she refused to let it go and struggled with them. As a result of the struggle she was pushed to the ground. Then you took the laptop bag which contain Sonny brand Laptop valued at $2000, Russian Passport of the victim, Vodaphone flash net valued at $ 79, Nokia Mobile phone valued at $39, Personal ID card and ANZ cards.
   
5. The learned State counsel submitted in his sentencing submission that some of the notable aggravating features of your offending are
   
   1. It was committed in a group,
      
   2. It was in a public place,
      
   3. The victim suffer minor injuries as a result but nothing overly serious,
      
6. The learned state counsel further submitted that following facts could be consider as mitigating factors for your favor,
   
   1. Cooperation with the police,
      
   2. All properties stolen except of the mobile phone and the Vodafone flash net were recovered,
      
   3. Early guilty plea,
      
   4. Young age,
      
   5. Remorse,
      
   6. First offenders,
      
   7. Time in remand,
      
7. In his sentencing submission the learned counsel brought to my attention several judicial dictums on various sentencing options on first young offenders and the tariff for the offence of Aggravate Robbery.
   
8. 1st, 2nd, and 3rd accused person tendered their mitigation submission with the assistance of the Legal Aid Commission and the learned counsel for the 4th accused tendered his mitigation submission.
   
9. This is a case involved a planed gang robbery which was committed at a public place, in a joint enterprise. All of you approached the victim when she was on her way back to home from the University and pulled her laptop bag and pushed her down and stole the items mentioned in summery of facts.
   
10. The offence of Aggravated robbery is becoming a serious problem and warranted a great judicial intervention with responsibility. The increasing crime rate in this nature has made the society to a vulnerable and insecure place where even an ordinary citizen is not allow moving freely on the public street. Any person who is stepping into a public place has to think twice of his own safety before he does so. All of you waited for an opportunity and went on executing your criminal plan without any remorse.
    
11. I now proceed 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.
    
12. The purpose of sentencing you for the offence of aggravated robbery 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, more importantly the to signify that the court and the community denounce the commission of such offences
    
13. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC010; HA0; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprisonment. Justice Shameem in Seseu v Stat3, FJHC 224, HAM0043J, 2003 2003S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem in kiusa Basa vs. the Sthe State (Cal Appeal AAU 24/2005), held that "'Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate wherearms are not used and the 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'
    
14. Justice Goundar in Susu's case (supra), has summarized the guiding principles in sentencing in cases involving robbery. They are:' From these authorities, the following principles emerge. The dominant factor 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.

15. 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
    
16. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of your respective mitigation submissions, I now draw my attention to determine an appropriate starting point for you. This is gang robbery at a public Place. In line with above sentencing guidelines and principles, I select 8 years imprisonment period as a starting point.
    
17. You committed this offence in a join enterprise. By virtue of the principle of join enterprise each one of your culpability and degree of responsibility for inflicting of violence and robbing the complainant same as of your accomplices.
    
18. The impact of the offence on the victims must be a horrified experience as she was suddenly surrounded by gang of four youth, threaten, pushed on the ground and robbed in a foreign country where she is studying in a university. This dreadful experience definitely remains with her in rest of her live. Moreover, the use of laptops and internet is becoming an integral part of university education process in modern era, where most of the modern day students store their valuable data and study materials in their laptops. Hence the lost of her laptops with internet flash net has undoubtedly adversely affected her education process in the university
    
19. Your act of offence could have the effect of endangering innocent public and their freedom of life. 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 victim to carry out your criminal act.
    
20. I now draw my attention to address the mitigating factors in your favors.
    

Onisimo Votea,

1. You are 18 years of age,
   
2. Promise not to re – offend,
   
3. Asked leniency and forgiveness,
   
4. First Offender,
   
5. Early guilty plea at the first available opportunity,
   
6. Remorseful,
   

Michael Jones Qoriniasi,

1. You are 18 years of age,
   
2. Student,
   
3. Asked leniency and forgiveness,
   
4. First offender,
   
5. Early guilty pleas at the first available opportunity,
   
6. Remorseful,
   

Eroni Bera,

1. You are 20 years of age,
   
2. Plumber by profession,
   
3. Asked forgiveness,
   
4. First offender,
   
5. Early guilty plea at the first available opportunity,
   
6. Remorseful,
   

Tomasi Dauvosota,

1. You are 19 years of age,
   
2. Asked forgiveness,
   
3. First offender,
   
4. Early guilty plea at the first available opportunity,
   
5. Remorseful
   

21. In view of aforementioned aggravating factors I increase 2 years, to reach the period of 10 years. In considering your early guilty plea I reduce 4 years and in view of other mitigating factors, I reduce 4 years to reach the period of 2 years. Furthermore, in pursuant to section 24 of the Sentencing and Penalties Decree I reduce 3 months for the period that you were in remand prior to this sentence. Now your sentence reaches to 21 months 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.
    
22. I now move to the issue of suspended sentence. All four accused persons are first young offenders and pleaded guilty at the first available opportunity by expressing their remorse on committing this offense and also admitted the responsibility of this offence. In contrast it is a responsibility of the court to protect the public from the growing criminal culture which is prevailing in the society. In view of these two diverse aspects in sentencing, the court has to consider the purpose of rehabilitation of the criminals by giving greater attention to the principles of deterrence and protection of the society. At this point I am assisted by Justice Nawana's findings in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) in relation to the First offenders, 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' - wpeople would tempt to coto commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded 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".
    
23. In the meantime I draw my attention to the possible adverse repercussions on a first young offender who is imprisoned with hardcore criminals. All of you are very young offenders wherefore; I consider a custodial sentence in an adult prison center would not meet both purposes of rehabilitation and the deterrence. I am of the view, a 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. I am confident, the opportunity of vocational training, spiritual guidance will restore your confidence and recognition for yourself in the society as a change person.
    
24. In view of these forgoing circumstances, I act in pursuant to section 26 (1) of the Sentencing and Penalties Decree and partly suspend your sentence.
    
25. Accordingly, you ONISIMO TAUCILAGI VOTEA, MICHAEL JONES QORINIASI,ERONI DERA,TOMASI DAUVOSOTA I sentence you for 21 months imprisonment period for the offence of Aggravated Robbery contrary to section 311 (1) (a) of the Crime Decree No 44 of 2009 and suspend 11 month from it for three years. The 10 months imprisonment period to be served in Nasinu Prison center with training facilities, and counseling.
    
26. If you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.
    
27. Since this court exercising the extended jurisdiction of the High Court in your case, you may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

On this 16th day of June 2010.

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