State v Murimuri [2011] FJMC 6; Criminal Case 65.2010 (18 January 2011)

IN THE RESIDENT MAGISTRATE'S COURT
OF SUVA

Criminal Case HAC No: - 065/2010

STATE

v

JOSAIA MURIMURI

For Prosecution : - Ms. Koto,
2nd Accused : - In persons

SENTENCE

1. You JOSAIA MURIMURI, were found guilty and convicted by this court at the conclusion of hearing for the offence of 'Aggravated Robbery' contrary to Section 311 (1) (a) of the Crimes Decree No 44 of 2009, which carry a punishment up to 20 years of imprisonment.
   
2. At the hearing, it was proved that you and your accomplice invaded the house of Mr. and Mrs. Thoms in the evening of 15th rch 2010. Your accomplice tice threatened Mr. Thoms with an empty beer bottle and assaulted him. You got hold of Mrs. Thoms and forced her to give money. You tried to tie up Mrs. Thoms but on her request for not to do so as she is a heart patient you decided not to tie her up. You then ransacked the room and then dragged her in to the other room where Mr. Thoms was struggling with your accomplice. You stole the money from the cash register and from the handbag of Mrs. Thoms and stole two mobile phones and one TFL Handy phone. You were not masked but had covered your head. Your accomplice who attacked Mr. Thoms was masked and covered his face.
   
3. This is a case involved with a planed home invasion and a robbery in a joint enterprise. The learned state counsel for the prosecution suggested in her submission that the aggravating factors are
   
   1. The crime was committed in the confines of a house or family house,
   2. The crime was committed in a joint enterprise,
   3. The accused person was armed with empty beer bottle,
   4. There were cash and assorted items stolen to the value of $440,
   5. The complainants were vulnerable citizens,
   6. It was a well planed robbery,
   7. Mr. Thoms was 68 years old and Mrs. Thoms was 69 years old at the time of the offence,
   8. Both complainant were physically assaulted during the course of the robbery,
   9. Both complainants sustained injuries,
   10. Mrs. Thoms is a known hypertensive patient who was thrown to the floor and slapped around,
   11. The complainant live alone and their house is secluded from the other residents,
       
4. The learned counsel for the prosecution brought to my attention that the tariff for the offence of aggravated robbery is 8 -14 years imprisonment.
   
5. You submitted a comprehensive plea of mitigation in written where you stated that though you have previous convictions, this is the first time you were charged for the offence of this nature. You cited in your submission that considering the overcrowded situation and congested condition in the prison, you are pleading for a suspended sentence.
   
6. The offence of Aggravated robbery is becoming a serious problem. It has turned the society to a prison without specific boundaries where criminals dictate the lives of peaceful citizens. It is a paramount judicial responsibility of the court to intervene to this negative social phenomenon in order to safe guard the rule of law in the society.
   
7. Bearing in mind above stated aggravating factors of the offence, 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.
   
8. 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
   
9. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HA2010; HA0; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprisonment. Justice Shami> in Seseu v State 2003, FJHC 224, HAM0043J, 200, 2003S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem in , held that
   

"'Sentences for robberies involving firearms should range from six to eight years. er raf four to seven yven years is appropriate where firearms arms are not used and 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'

10. Justice Goundar in Susu's ca> (supra),pra), 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 seress for any types of robberobbery 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.

11. 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
    
12. Having considered above judicial precedents, provisions of the Sentencing and Penalties Decree, sentencing submissions of the prosecution and the mitigation submission I now proceed to determine an appropriate starting point for you. In line with above sentencing guidelines and principles, I select 8 years imprisonment period as a starting point.
    
13. You committed this offence in a join enterprise. I find this is a well calculated planned home invasion. You committed this offence on a date where a curfew was imposed due to hurricane warning. You and your accomplice took the advantage of the hurricane warning and curfew to carry out this disgraceful crime on two old sickly couple living along in their house. 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.
    
14. The impact of the offence on the victims must be a terrifying experience as they were suddenly invaded by two youth armed with an empty beer bottle, assaulted and robbed them. This dreadful experience definitely remains with this old couple in rest of their lives. You and your accomplice inflicted violence and robbed them while they were peacefully enjoying their evening on the day of the incident.
    
15. 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. You are not a first offender wherefore; I disregard your previous good behavior as an mitigatory factor though I do not consider your previous convictions as an aggravated factor. Furthermore, I do not consider your plea of not guilty and conducting a full trial before you were found guilty for this offence as an aggravated factor too.
    
16. I now consider mitigatory factors in your favors.
    
    1. you are a young person,
    2. seek non custodial sentence,
    3. first time charged with a offence of this nature,
       
17. In view of aforementioned aggravating factors I increase 2 years, to reach the period of 10 years. I reduce 5 years for your young age and other mitigatory factors to reach the period of 5 years. Further I reduce 10 months for the period that you were in remand prior to this sentence according to the section 24 of the Sentencing and Penalties Decree Now your sentence reaches to four years and two months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is above two years could not be suspended by this court.
    
18. Accordingly, I sentence you for four years and 2 months imprisonment period for the offence of Aggravated Robbery contrary to section 311 (1) (a) (b) of the Crime Decree No 44 of 2009, . Further in term of section 18 (1) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 3 years.
    
19. Since this court is 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 18th day of January 2010.

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