State v Samusamuvodre [2011] FJMC 13; Criminal Case 1242.2010 (7 February 2011)

IN THE MAGISTRATE'S COURT OF FIJI AT NADI

Criminal Case No.1242/10

THE STATE

v

KITIONE VUKU SAMUSAMUVODRE

Mr.Newal for prosecution
Accused in person
Sentence: February 7, 2011.

SENTENCE

1. KITIONE VUKU SAMUSAMUVODRE, you are charged with one count of AGGRAVATED ROBBERY contrary to section 311 of the Crimes Decree No.44 of 2009.
   
2. Aggravated robbery is an indictable offence in terms of section 311 of the Crimes Decree; however jurisdiction of this court to hear this case has been extended by High Court by order dated 18th January 2011.
   
3. When explained about your right to counsel you told court that you are waiving your right to counsel and that was your free will.
   
4. You pleaded guilty to the charge when the charge was read and explained to you and after you confirmed that you understood the charge.
   
5. A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution handed up a copy of it to court.
   
6. I have reviewed the facts against the particulars of the offence charged in this case, and I am satisfied that they supports the essential elements of the charge in the information laid against you by the prosecution.
   
7. Therefore I convict you as charged.
   
8. The facts of this case were that 2nd December 2010 at about 2230hrs at Queens Rd, Nakavu, Nadi you robbed Qu Ping (complainant) and stole cash and other items to the total value of $523.00. On that day the complainant after knocking off from work was walking on the footpath towards Namotomoto Village with Li Xiu Lian. Upon reaching Denarau junction you grabbed her hand bag and pulled the hand bag which she was holding firmly. Other prosecution witnesses who were walking behind ran to her and caught you from behind. You managed to free yourselves and ran towards Nadi Primary Ground. Thereafter, the complainant together with others kept on walking towards Kennedy. At the Kennedy you again grabbed the complainant's hand bag and pulled her to the ground whereby she received injuries. You got a stab from one of the prosecution witnesses. At the caution interview you admitted that you robbed the Chinese lady because you needed money to spend during the Nadi Bula Festival. Medical Officer's Report confirmed the victim had injuries lip bottom, forearm, left face, right elbow and left posterior lip.
   
9. Aggravating features were that you robbed 28 years old Chinese lady at nigh in you second attempt; caused injuries to the victim; you robbed using violence property worth of $523.00; total lack of respect towards the victim's property and personal enjoyment of property rights.
   
10. Mitigating factors were that you are 22 years old, single and famer; first offender, sought forgiveness and promised that you won't re-offend.
    
11. The offence 'Aggravated Robbery' carries a penalty of 20 years imprisonment according to section 311-(1) of the Crimes Decree.
    
12. From a 5 year starting point, 5 1/2 years for critical role in ensuring the joint criminal enterprise of Burglary (s. 299 (a) & (b) and robbery with violence (s.293 (1) ) was successful, for a cowardly home invasion violating the privacy of a family, total lack of respect towards victims property and personal enjoyment of their rights in their own home; Yasa's co-accused stern punishment of 10 years to indicate public disapproval of conduct which strikes at a very heart of safety and security of the public: per Goundar, J in State v Sailosi Ralago Volivale [2009] HAC 30 (A) /05S 18 June 2009.
    
13. Accordingly, in this case, I select 5 years imprisonment as a starting point.
    
14. In view of the above aggravating factors, I increase your sentence by another 1 year, and the interim total is now 6 years.
    
15. I observe that an accused who pleads guilty in the first available instance is entitled for a 1/3 reduction of the term of imprisonment. (Akili Vilimone v State, Cr. App. HAA 131/2007). For your guilty plea I deduct 2 years and for the fact you are first offender I give you further deduction of 1 year from your term. Accordingly your sentence is 3 years imprisonment.
    
16. I am mindful of the fact that in terms of section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case I fix 18 months non-parole period.
    
17. I note the dictum of Nawana J in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) where it was held that "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 'Firstnder Syndrome' -160;- where peopuld tempt empt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. Tsultasition is that that the society is pervaded with crimes. Cos. 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. The duty cast upon this court is not only be fair to you as cused as urged by you, but also to serve justice to the soce society at large as expressed by Winter J, in the case of Viliame Cavuilagi v State [Crim. App. HAA 0031 of 2004].
    
19. The sentence might act as a deterrent to the offender and others who fall into pattern of semi-professional crime to support themselves.
    
20. Society is entitled to sideline or warehouse offenders like you out of the community for longer periods of time so that at least during the term of incarceration they cannot wreak havoc on the lives of law-abiding citizens.
    
21. Offenders like you deserve punishment that fits the circumstances of the crime.
    
22. Twenty eight (28) to appeal.
    
23. Accused is hereby sentenced to three (3) years imprisonment with a non-parole period of 18 MONTHS.
    

M H MOHAMED AJMEER
Resident Magistrate
Dated at Nadi this 7th day of February 2011.