IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1008/2007.

STATE

V

ASIVOROSI JITOKO,
OPERAIA VULI,
AISEA LEDUA

For Prosecution: - Mr. Fotofil,
First Accused Person: - In person,
Second Accused Person:- In person,
Third Accused Person:- In person

SENTENCE FOR THE 1ST, 2ND AND 4TH ACCUSED

1.	You ASIVOROSI JITOKO (1st accused), OPETAIA VULI (2nd accused), and AISEA LEDUA (4th Accused) were found guilty and convicted at the conclusion of the hearing for two counts of "Robbery with Violence" which is punishable under section 293 (1) (b) of the Penal Code Act 17, entailed a punishment up to life imprisonment. 

2.	The brief summary of these two counts are that three of you together with another accomplice forced into the shop owned by Mrs. Bedh Wati Lal and Mr. Veer Chand Lal on 3rd day of June 2007 and stole therein. Prior to steal therein, your accomplice stabbed said Mrs. Wati on her hand and Opetaia Vuli, you punched Mr. Veer Chand on his forehead. You tied Mr. Veer Chand and then stole therein the items mentioned in the particulars of the offence in respect of these two counts. 

3.	The learned, State Counsel, submitted in his sentencing submission that this case involve with a shop invasion. Moreover, the learned counsel for the prosecution suggested in his submission the aggravating factors are 

i.	The use of weapons during the robbery,

ii.	Mr. and Mrs Lal were assaulted whereby Mr. Lal was knocked onto the ground and more seriously Mrs. Lal was stabbed with a knife.

iii.	The victims were in their late 40s at the time of the offending,

iv.	The crime was committed by group,

v.	About $ 6500 in cash and property were taken from the victims but a few bottles of alcohol and jewellery were recovered. 

4.	The learned counsel impelled that the offences in this nature are becoming a serious problem and warranted a custodial sentence. In addition the learned counsel drew my attention that the tariff as set out in " State v Elia Manoa ( Criminal Case No 108 of 2009) for the offence of gang robbery is between 8-14 years imprisonment. 

5.	The first accused person refused to mitigate when he was offered opportunity but 2nd and 4th accused persons tendered their respective mitigation submissions. The 2nd accused person highlighted the circumstances faced by his two kids after his wife left him sometimes back and now only his ageing mother has to look after his two little kids. The 4th accused person rather made a statement of his innocent and his displeasure to the judicial system which I disregard as mitigating factors, but I do not consider them as aggravating circumstances against the 4th accused person. In addition the 4th accused person stated the mental agony that he had to face when his mother died while he was in remand pending this hearing. 

6.	At this point I turn to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree as these two counts of Robbery with Violence founded on the same facts and/ or forms a series of offences of the same and similar character. . 

7.	 Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054.2010; 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 State 2003, FJHC 224, HAM0043J, 2003S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem  in Sakiusa Basa vs. the State (Criminal 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 where firearms 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'

8.	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.

9.	In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of the sentencing submission and mitigation submission of the accused persons, sufficiently directed me to determine an appropriate starting point for you. This is planned gang robbery at the shop. You used offensive weapons to inflict injuries on the victim and victims were middle age couple. 

10.	 In view of findings in abovementioned judicial dicta, the purposes of sentencing three of you in this case are to punish offenders to an extend and in a manner which is just in all the circumstance, to protect the community from offender in this nature, to deter offenders from committing offences of similar nature, and to signify that the court and the community denounce the commission of offences in this nature. In line with above sentencing guidelines and principles, I select 10 years imprisonment period as a starting point.

11.	Three of you committed this offence in a join enterprise together with another accomplice. I find this is a well calculated planned gang robbery. You all carried out your pre-planned robbery in most scandalous and brutal manner. By virtue of the principle of join enterprise each one of your culpability and degree of responsibility for inflicting of violence and robbing the complainants same as of your accomplices. 

12.	The impact of these offences on the victims must be a horrified experience as they were suddenly found that three of you together with another accomplice forced into the shop and inflicted violence on them and stole therein. This dreadful experience definitely remains with them in rest of their life. You all inflicted violence and robbed them while they were peacefully engaging in their livelihood. 

13.	 All of you planned this act of robbery and acted in concert with each other to fulfill your criminal intention. All of you have demonstrated that you have no respect and regard to the rights of other's freedom. The crimes in this nature are prevalent and which have now gone into extend that the security and safety of any citizen could not be guarantee. The society has gradually turned in to a place of vulnerable and insecure due to this increasing crime rate which demands a greater judicial intervention with responsibility. 

14.	Asiviorosi Jitoki and Aisea Ledua, both of you are adversely reported with previous convictions which do not allow me to consider your previous good behaviors as mitigating factors in your favour though I do not consider them as aggravating circumstances against both of you. 

15.	I now draw my attention to address the mitigatory factors in your favors. 

i.	Asivorosi Jitoko, you were 19 years of age at the time of committing these two counts of Robbery with Violence. You have been in remand pending final determination of this case since 23rd of April 2010. 

ii.	Opetaia vuli, you are a father of two little kids and your wife has left you. You live with your aging mother. Apologetic. You have been in remand pending the determination of this case since 9th of December 2009,

iii.	Aisea Ledua, you have been in remand pending the determination of this case since 9th of December 2009.

16.	 In view of aforementioned aggravating factors I increase 5 years, to reach the period of 15 years. 

Asivorosi Jitoko, I reduce 4 years for your young age and 1 year and five months for the time that you were held in custody pending the determination of this case in pursuant of section 24 of the Sentencing and Penalties Degree. Now your sentence reaches to 9 years and 7 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. 

Opetaia Vuli, I reduce 5 years for your mitigation and 1 year and 7 months for the period that you were held in custody pending the determination of this case in pursuant of section 24 of the Sentencing and Penalties Decree. Now your sentence reaches to 8 years and 5 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. 

Aisea Ledua, I reduce 5 years for your mitigation and 1 year and 7 months for the period that you were held in custody pending the determination of this case in pursuant of section 24 of the Sentencing and Penalties Decree. Now your sentence reaches to 8 years and 5 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. 

17.	Accordingly, I sentence

i.	Mr. Asivorosi Jitoko for 9 years and 7 months imprisonment period for the two counts of "Robbery with Violence" contrary to section 293 (1) (b) of the Penal Code Act 17. Further you are not eligible for parole for a period of six years in pursuant of section 18 (1) of the Sentencing and Penalties Decree 2009. 

ii.	Mr. Opetaia Vuli for 8 years and 5 months imprisonment period for the two counts of "Robbery with Violence" contrary to section 293 (1) (b) of the Penal Code Act 17. Further you are not eligible for parole for a period of six years in pursuant of section 18 (1) of the Sentencing and Penalties Decree 2009. 

iii.	Mr. Aisea Ledua for 8 years and 5 months imprisonment period for the two counts of "Robbery with Violence" contrary to section 293 (1) (b) of the Penal Code Act 17. Further you are not eligible for parole for a period of six years in pursuant of section 18 (1) of the Sentencing and Penalties Decree 2009. 

18.	28 days to appeal, 

On this 25th day of August 2011.

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