State v Cama [2012] FJMC 304; Criminal Case 329.12 (21 November 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 329/12

THE STATE

V

MELI CAMA AND ANOTHER

Prosecution : Cpl Reddy, Police Prosecutor.
First Accused : Mr. Naco.

SENTENCE

1. Meli Cama the first accused of this case, pleaded guilty before this Court on 02.11.2012 to the charge of Aggravated Robbery contrary to section 311 (1) (a) of the Crimes Decree 2009.
   
2. The prosecution alleges that you and another robbed $ 122 cash and an iphone worth $ 1300 from Mr. Roneil Nitesh on 25.02.2012.
   
3. The agreed facts confirmed that Mr. Roneil Nitesh was a taxi driver at the time of the incident. You and the other person stopped his taxi at Rewa Street around 6.15 in the morning. You have requested him to drop you in Toorak.
   
4. After it was stopped at your destination you got off from the taxi pretending that you are getting the fare and pushed the arms and the neck of the driver. At this time Mr. Nitesh's cash was taken by the other accused. Thereafter you grabbed his iphone from the shirt pocket. Both you and the other person fled from the scene. Later the matter was reported to the police and you were arrested on suspicion. During the caution interview you admitted stealing the iphone.
   
5. Agreed facts further states that the iphone was recovered as a result of that it was returned by another occupant of your flat.
   
6. You embarked on a case of joint enterprise as it was committed with another accomplice. The doctrine states that each person is liable for the wrongful acts of others if he or she had reasonable belief that those acts could be committed during the course of acts of the main offence. Thus you are liable for stealing $ 122 from the victim although it was committed by the accomplice.
   
7. I must note that the offence you committed is not trivial although the facts state that it was a phone and some few hundred dollars. Though it was minimal it involved actual use of physical violence. The victim of the present case is a taxi driver. Even in the absence of an impact report it is not difficult to conclude these types of service providers are vulnerable in nature as they always in possession of cash earnings. They hardly have the option of refusing customers.
   
8. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] F26; HAC054.C054.2010; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprisonment. Justice Shameemb>Seseu v State 2003 FJHC 224, HAM0043J, 2003S, 03S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years.
   
9. In the event of deciding an appropriate starting point for your sentence the Court is guided by the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree No 42 of 2009, which states,
   

'As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in [the General Sentencing Provisions of the Decree.'

10. The objectives of sentencing, as set-out in Section 4 (1) of the Decree, are as follows:
    

(a) To punish offenders to an extent and in a manner, which is just in all the circumstances,

(b) To protect the community from offenders,

(c) To deter offenders or other persons from committing offences of the same or similar nature,

(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated,

(e) To signify that the court and the community denounce the commission of such offences, or

(f) Any combination of these purposes.

11. State vs Rokonobete and Others [2008] FJHC 226 which was referred to by His Lordship Justice Goundar in State v Susu [supra] has summarised 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.'

12. However His Lordship Justice Gates (as he was then) in the case of State v Patrick Fong [FJHC 722/05] held,
    

'Much has been said of attacks on taxi drivers. The court has concluded that the need for harsh deterrent sentences to protect taxi drivers, and the transport facility they provide for the public, far outweighs the personal mitigating circumstances of unthinking or alienated young men: Peni Raiwalui v The State (unreported) Suva Crim. App. No. HAA030.03S, 12 November 2003; Vilikesa Koroivuata v The State (unreported) Cr. App. HAA064.04S, 20 August 2004; State v Charles Marvick, (unreported) Suva Cr. Case No. HAC027.028.04S 19 October 2004.

13. In State vs Charles Marvick and in Vilikesa v State [HAA 064/04;20.08.2004] His Lordship stated,
    

'Violent and armed robberies of taxi-drivers are all frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. .....The risk of personal harm they take every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instil in prospective muggers the knowledge that if they hurt or harm a taxi-driver, they will receive a lengthy term of imprisonment'

14. This Court convicts Meli Cama for the offence of 'Aggravated Robbery'. As there is no evidence on physical injuries and also the value involved is not substantial, I take 5 years as the starting point for your sentence.
    
15. The only aggravating feature of the offence is that the victim of the case has been a public service provider. 1 year is added in order to reflect the same. Now your sentence is 6 years.
    
16. Your early plea signifies the true remorsefulness. One third of your sentence is deducted for saving time and resources of the Court. This will bring down your sentence to 4 years.
    
17. In mitigation your counsel stated,
    
    1. You are 22 years old,
    2. The offence is unplanned,
    100. First offender,
    4. University student,
    5. Co-operated with the police,
    6. Item [iphone] recovered,
    7. Looking forward to complete the studies.
       
18. He further submitted a letter of good stand from Acting Head of School of Maritime Studies, Fiji National University. You stated that you are now about to take the twelve month course in the sea as a part of your studies.
    
19. The Court grants a further deduction of two years to reflect you're above personal circumstances. That leaves the sentence at 2 years.
    
20. Your counsel pleaded for a suspension of the sentence. In fact the Court's final sentence is eligible for suspension under section 26 (2) of the Sentencing and Penalties Decree 2009.
    
21. It is to be noted that the society denounce these types of offences and these types of cases are now prevalent. However view of this Court is that the seriousness of an individual offence should be judged on its own dimensions of harm and culpability rather than as a part of a collective social harm.
    
22. It is legitimate to have an overall approach to sentencing levels of grave offences to be guided by their cumulative effect. However it would be wrong and unfair to penalise individual offenders based on that aspect. Therefore 'prevalence of an offence in the society' should not influence the sentencing level of an individual offender.
    
23. It is clear that the two accused persons of this case had no premeditation to commit this offence. Although they acted together the act can be considered as an 'Act of Opportunity'. Recovery of most valuable item shows that the actual damage is minimal. The victim was free from any physical injuries, thus the degree of violence can be noted as least.
    
24. In the light of the above circumstances the Court should consider the offender's character before conclude its decision on suspension.
    
25. The Court can determine the character of an accused person based on section 5 of the Sentencing and Penalties Decree. It states,
    

Factors to be considered in determining offender's character

5. In determining the character of an offender a court may consider (amongst other matters) —

(a) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions recorded against the offender;

(b) the general reputation of the offender; and

(c) any significant contributions made by the offender to the community, or any part of it.

26. It is evident Meli Cama is free from any previous convictions. The letter of good stand dated 08.03.2012 states his future prospects to become a Ship Master. Mr. Biu Lavaki the acting Head in the School of Maritime Studies confirms that the accused Meli is a person with leadership qualities. According to him the accused is confident, sociable and a well mannered young person. At present he is in the stream of Nautical Sciences as a stage two student at the Fiji National University. Mr. Lavaki has endorsed his letter by confirming the accused has a bright future ahead.
    
27. If the Court issues a custodial sentence it is apparent that his future prospects will come to halt. Instead he will be sent to a prison where he will meet serious offenders.
    
28. It is to be noted that suspended sentence is also considered as a term of imprisonment. The difference is that the offender serves the sentence while attending to his day to day work. The offender is bound for not to commit any other offence during the operational period. Any subsequent find of guilt will result him to serve the sentence which was suspended by the Court. It can also be considered as a period of rehabilitation to a first time offender, where the Court and the law enforcement authorities will have a close monitor on him.
    
29. Having considered the above discussed circumstances I am of the view that the sentence of accused Meli Cama should be suspended.
    
30. Therefore your final sentence of two years imprisonment is suspended for four years.
    
31. As stated early, any breach of the sentence would be liable for a separate prosecution against you.
    
32. Since this Court is acting on the extended jurisdiction of the High Court, you may appeal to the Court of Appeal within 30 days.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

21st November 2012