State v Banuve [2012] FJMC 179; Criminal Case 1233.2010 (30 July 2012)

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

CRIMINAL CASE NO.1233/10

THE STATE

Vs

RATU TEVITA BANUVE

Sgt. Naidu for prosecution

Accused in person

Date of Sentence: 30.07.2012

SENTENCE

[1] RATU TEVITA BANUVE, this is your sentence.

[2] You were charged with one count of Aggravated Burglary contrary to Section 311 (1) (a) of the Crimes Decree No.44 of 2009.

[3] This court is invested with jurisdiction to try this case by the High Court by order dated 28 January 2011.

[4] You pleaded guilty to the charge when the charge was read and explained to you on 13 July 2012 and after you confirmed that you understood the charge. Previously before the matter was transferred to High Court you had pleaded guilty to the charge on 16 December 2010, being the first call date. Later you got the guilty plea vacated in High Court.

[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 it 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 are that: At around 2000hrs on 19 November 2010 you with another entered the Ravoravo Pool Centre at Namaka Lane and punched and threatened the complainant and stole wherefrom assorted items including MBA brand speaker and Silver Alcatel Mobile phone all to the total value of $2108.00. You with another loaded the stolen items in a white private car Registration No. CG-874. When you loaded the complainant's father locked the main gate. Seeing this you climbed over the fence at the back and ran off leaving all big items in the car. $260.00 worth of items recovered when your house was searched by Police.

[9] Medical Report tendered by the prosecution confirms that the complainant had bruising on left lower lip.

[10] The trauma you caused to the complainant, the loss caused to the complainant, total disregard of the law and property right of the complainant, joint criminal enterprise and night robbery aggravated the offending.

[11] Mitigating features are that: i. you are 23 years old, married with two children; ii. You are a first offender and seek leniency. iii. You promised that you will not re-offend.

The Sentence:

[12] The offence 'Aggravated Robbery' carries a maximum penalty of 20 years imprisonment according to section 311-(1) of the Crimes Decree.

[13] Aggravated robbery like other old offence of robbery with violence is very prevalent offence in Fiji to the extent that harsh sentences are handed down in an attempt to diminish the occurrence of the offence.

[14] The tariff for this offence has been within ten to fifteen years depending on the degree of violence (The State v. Rokonabete HAC 118/07).

[15] You committed this offence in the company of another. You have used minimum force to rob the complainant.

[16] In your case I would take as my starting point a term of 6 years and add one year for the above aggravating features. I deduct 2 years and 4 months to reflect your guilty plea. I have considered the fact that you pleaded guilty to the charge in the first instance though recorded your guilty plea for the second time after vacation of your previous guilty in High Court. You have no previous criminal record. For this I deduct further 6 months. I deduct another 4 months for your mitigation. Your final term is 4 years and 10 months imprisonment.

[17] I am mindful of the fact that pursuant to section 18-(1) of the Sentencing and Penalties Decree 2009 I must fix a non-parole period. In this case I fix 2 ½ years as non-parole period.

[18] The sentence might act as a deterrent to the offender and others who fall into pattern of semi-professional crime to support themselves.

[19] Society is entitled to sideline or warehouse offenders like you out of the community for longer period of time so that at least during the term of incarceration they cannot wreak havoc on the lives of law-abiding citizens.

[20] Offenders like you deserve punishment that fits the circumstances of the crime.

[21] Your sentence exceeds 2 years hence I cannot suspend your sentence.

[22] Since I have delivered this sentence on extended jurisdiction you have thirty (30) days to appeal to the Fiji Court of Appeal with leave.

Order:

[23] RATU TEVITA BANUVE, you are hereby sentenced to four (4) YEARS and ten (10) MONTHS imprisonment with a non-parole period of 2 ½ years. That means you will be eligible for parole after 2 ½ years.

M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this 30th day of July 2012.