State v Curubara [2012] FJMC 160; Criminal Case 487.2012 (17 July 2012)

IN THE MAGISTRATE'S COURT OF FIJI
AT NADI
[EXTENDED CRIMINAL JURISDICTION]

CRIMINAL CASE NO.487/12

THE STATE

Vs

ANANAIASA CURUBARA
(ACCUSED 1),

BOSE KACIVI
(ACCUSED 2)

& NAISA QALOBULA
(ACCUSED 3)

Mr. Filimoni Lacanivalu (S C) for the State

Accused in person

Sentence: 17.07.2012.

SENTENCE

1. ANANAISA CURUBARA ("ANANAISA"), BOSE KACIVI ("BOSE") and NAISA QALABULA ("NAISA") are jointly charged with one count of AGGRAVATED ROBBERY contrary to section 311(1) (a) of the Crimes Decree No.44 of 2009 as follows:
   

Statement of Offence

Aggravated robbery contrary to section 311 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Ananaisa Curubara, Bose Kacivi and Naisa Qalabula on the 12th day of May, 2012 at Nadi in the Western Division robbed one RICHARD IHAKA of his mobile phone valued at $900.00, wallet valued at $530.00, canvas valued at 20.00, cap valued at $120.00 all to the total value of $1770.00, the property of RICHARD IHAKA.

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 6th June 2012.
   
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 state, which was put to you and you admitted the facts stated therein. The state 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 it supports the essential elements of the charge in the information laid against you by the prosecution.
   
7. Therefore I convict all of you as charged.
   
8. The facts of this case were that on the morning of 12th May 2012, Richard (an Australian citizen), the complainant caught a taxi from ED's Bar with the few other friends and got off at Nasoso. Just close to the junction of the road where Richard got off, three of you were drinking beer under a wooden market stall. Bose, you knew Richard called to him and asked him to join drinking beer. Richard joined the group and later wanted to smoke marijuana when he asked he asked you where he could get them. You, Bose told him where they sold marijuana whereby all of you agreed to walk and buy some. On your way to buy marijuana along Koroniqava Road in Nadi, all of you planned to rob Richard. You, Ananaisa afterwards punched Richard on the chin where he fell to the ground unconscious. While on the ground, Ananaisa and Bosse you both stole various personal items belonging to Richard. Ananaisa, you took his mobile phone and his wallet while, you Bose took his cap and canvas shoes. Naisa, you on the other hand planned with both Ananaisa and Bose to rob Richard although you did not steal anything.
   
9. All items belonging to Richard were recovered except the $20.00 cash.
   
10. Medical Officer noted the following in the Medical Report: 1. Sharp ½ inch cut on left upper lips (not deep) swelling and fresh bleeding. Swelling of lower lip left. 2. Bruises of 2cm on nose, dot blood on it. 3. 2 inch superficial cut on left temple. 4. Swelling of right ear.
    
11. Aggravating features were that:
    
    • (a) Attacking the complainant;
      
    • (b) Showing disrespect for the complainant's property right when you stole his personal belongings; and
      
    • (c) Injuries and shock you caused to the complainant as a result of the robbery.
      
12. Mitigating factors were that: your personal circumstances, guilty plea, previous good character and remorse.
    
13. The offence 'Aggravated Robbery' carries a penalty of 20 years imprisonment according to section 311-(1) of the Crimes Decree.
    
14. The Supreme Court decision in Guston Fredrick Kean v State [2011] FJSC 11 (12 August 2011) and State v Sakiusa Rokonabete & Others, Criminal case No. 118 of 2007, High Court, Suva; Sakiusa Basa v The State, Criminal Appeal No. AAU0024.2005 , Fiji Court of Appeal; Semisi Wainiqolo v The State, Criminal Appeal No. AAU0027.2006 , Fiji Court of Appeal has approved the tariff as between 6 or 8 to 14 years imprisonment. The tariff has been accepted in recent cases such as State v Joseva Vakanawakoro [2011] FJHC 745 HAC179.2010 and State v Lepani Varani HAC070.2010S.
    
15. Accordingly, in your case, I would select 6 years imprisonment as a starting point. I have selected my starting point from the lower end of the scale.
    
16. In view of the above aggravating factors, I increase your sentence by 9 months, and the interim total is now 6 years and 9 months.
    
17. 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). You pleaded guilty to the charge in the first instance. I therefore for your guilty plea deduct 2 years and 3 months. This brings the total to 4 years and 6 months. For the fact that all of you are first offenders I give you further deduction of 8 months. In addition for your mitigation I deduct another 4 months. Hence your final sentence is 3 years and 6 months imprisonment. This means each one of you must serve 3 years and 6 months imprisonment.
    
18. I should not ignore the fact that you are remanded in custody since 22nd May 2012. Therefore this sentence shall be effective as of that date.
    
19. 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 2 years as non-parole period.
    
20. The duty cast upon this court is not only be fair to you as an accused as urged by you, but also to serve justice to the society at large as expressed by Winter J, in the case of Viliame Cavuilagi v State [Crim. App. HAA0031.2004].
    
21. The sentence might act as a deterrent to the offender and others who fall into pattern of semi-professional crime to support themselves.
    
22. 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.
    
23. Offenders like you deserve punishment that fits the circumstances of the crime.
    
24. Twenty eight (28) days to appeal.
    
25. Each one of you is hereby sentenced to three (3) years and six (6) months imprisonment with a non-parole period of two (2) years. You will be eligible to be released on parole after two (2) years. This sentence shall be effective as of 22 May 2012, the date you were remanded in custody.
    

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 17th day of July 2012.