State v Tui [2010] FJMC 54; Criminal Case 605 of 2008 (25 May 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal case No 605/08

BETWEEN

THE STATE

AND

NAVITALAI TUI

SENTENCE

1. You, Navatalai Tui are to be sentenced upon pleading guilty to the charge of Robbery with violence contrary to Section 293(1) (b) of the Penal code.
   
2. The maximum sentence for robbery with violence is imprisonment for life.
   
3. In this case I pick my starting point as 4 years.
   
4. It was revealed that on the 4th august 2008 you with other persons have robbed a van driver. A woman had come to hire the van of the complainant and had taken the van to Maravu Street. When she got the van stopped near a church you and another have come there and you have tried to grab the complainant out of the van. When the complainant fell out of the van you have punched him. You have taken the ignition key of the van with some other keys. You have stolen the van driver's mobile phone valued 850 dollars. When a pastor of the church came out you have fled the scene with the other.
   
5. Prosecution informed the court that you have one previous conviction for larceny on 19.03.09.
   
6. The following aggravating features were observed in this case.
   
   1. The offence is a planned one.
      
   2. Three persons were involved in committing the offence.
      
   3. Personal violence is used.
      
   4. The offence is committed on a person providing public transport.
      
   5. The stolen items have not been recovered.
      
   6. Prevalence of violent robberies in the society.
      
7. This type of offences has become prevalent in the society and you have created terror in the minds of the people. Invariably this kind of actions creates an insecure environment for the members of the public to move freely and to engage in their lawful businesses. The courts have always imposed severe sentences where persons who provide public transport were robbed. The courts have stressed the importance to ensure a safe environment for them to engage in their business.
   
8. This court has a duty to impose an appropriate sentence on you. At the same time the court has to impose a deterrent sentence to pass a stern message to the society regarding the consequences of violent actions of this nature.
   
9. For the aggravating circumstances of this case I enhance the sentence by six moths.
   
10. In mitigation you said that you want to apologize to the complainant. You said the comrades in the military rely on you. You promised that you will not re appear in this court. Apart from that you tendered a written mitigation.
    
11. You have said in the written mitigation that;
    

"I realized I can only blame my self for being here in court. Early in my life I made wrong choices and hurt a lot of people including my family especially my mother. Being raised up in my neighborhood no one ever gave me a chance to be something. I allowed a lot of wrong things to influence my life and this led me to crime. And this was way before I join the military. The best decision I have ever made was the decision to join the Army. It's in the army that I found stability. I actually believed that I was for once worth something. My friends can look at me now and actually respect me. The army is the only possible chance of reform that I have and this reform is working. I can not take back the hurt that I have caused people but I assure you that I am a better person and I am willing to go back to the people I hurt and seek there forgiveness and even perform community service. All I ask is that I be given the opportunity to repay my debt to society through my service in the army and also give me the opportunity to be an example to the community. I am at your mercy. I hope that you will consider my humble plea."

12. You have called an Army Corporal to give evidence on your behalf in mitigation. That Corporal said that you are a new recruit and you work as a cook in the army. He said after you were recruited to the army your way of life was changed. He said that you are disciplined and remorseful.
    
13. Initially you pleaded not guilty and nearly after two years once the case was taken up for trial and when the complainant's evidence was concluded you pleaded guilty. Although you waited until the last minute to plead guilty you have shown a genuine remorse about your actions. It appears after joining the army you have reformed yourself.
    
14. But it should be stated that although you appear to have changed after joining the army you cannot be exonerated from the crimes you have committed. The criminal law principals do not recognize a system where offenders are exonerated or excused if they change their life style after committing a crime. In fact that can only be considered as a compelling mitigating factor.
    
15. The court appreciates the fact that you have realized your wrong doings in the past. Also the court is mindful that you should be given a chance, especially because of you're age, to correct yourself. However I should re iterate that the fact that you joined the army could not be considered as a fact to release you with out sentencing you according to the provisions laid down in the Penal Code and according to the established legal principals.
    
16. If someone does an illegal act or commits an offence, the consequences of such actions will follow you as a shadow and will engulf your whole future. This should send a message to the society as to how costly it would be your own wrong doings at a later stage of your life even if you really want to lead a normal and peaceful life. This should be a good lesson for those who are minded to indulge in this kind of impermissible actions.
    
17. How ever much you say that you have changed your life the court has an obligation to take in to consideration the agony, the mental and physical trauma and the terror you brought to the lives of other people. Yet the court will consider your mitigating factors in sentencing you since the court has an equal duty to give you a chance to correct yourself and become a law abiding member of the society.
    
18. Thus for the mitigating circumstances I reduce your sentence by six months.
    
19. The tariff for this kind of offences is 4-7 years. The court is compelled to impose a sentence within these limits based on the circumstances of this case. It should be noted that this court has no jurisdiction to impose a non custodial sentence for imprisonments over 2 years.
    
20. Thus I impose a 4 years imprisonment on you. Having considered the mitigating circumstances and especially for the remorse and for your willingness to correct yourself I order that you are eligible for parole after 24 months.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
25.05.2010