State v Nacagi [2013] FJMC 20; Criminal Case 1284.2004 (21 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 1284/2004

STATE

V

JONACANI NACAGI

Prosecution: Cpl. Temesi Evo, Sgt Jitendra, Police Prosecutors.

Accused : Appeared in person.

SENTENCE

1. You, Jonacani Nacagi are here today to be sentenced on the 'guilty' plea entered on your own accord and free will, in this Court on 21.07.2004, for committing the offence of 'Robbery with Violence' contrary to Section 293 (1)(b) of the Penal Code, Act 17.
   

Chronology of Events

2. The matter was first called on 26.05.2004 before learned Magistrate Mr.Salesi Temo[ as he was then] to enable you to apply for legal aid assistance. Later on 21.07.2004 you elected a Magistrate's Court trial and pleaded guilty before the learned Magistrate Aminiasi Katonivualiku. Then it was further adjourned on few occasions for your submissions on mitigation. However due to an un-explained reason, the case was not called in the Court till 26.01.2009.
   
3. In 2009 having considered the undue delay in passing the sentence, you applied a stay of proceedings to the High Court. Hon. Justice Gounder by his ruling dated 21.08.2009 turned down the application and further ruled that your plea was unequivocal. Therefore this Court will now proceed to consider the agreed facts of the case.
   

Summary of Facts

4. According to the Summary of Facts tendered by the Prosecution, you had committed this offence on 22.04.2004 at around 8.40 pm in Mead Road, Nabua. You had entered the Mobil service station with three others and robbed Stephen Chand. He was in possession of $170 in cash and 40 packs of cigarettes. Immediately before the robbery you have threatened him to use personal violence with a cane knife.
   
5. The aforesaid Summary of Facts was admitted by you on your own free will.
   
6. This Court convicts you for the offence.
   
7. (i) According to Section 293 (1)(b) of the Penal Code, the Maximum Sentence that could be imposed against you is life imprisonment.
   

(ii) The courts have considered in robbery cases that involve violence a tariff between 04 to 07 years of imprisonment.

8. According to His Lordship Justice Goundar in the case of The State v. Sakiusa Rokonabete and three others (Criminal Case No. HAC 118 of 2007 Suva, 15th September 2008), aggravating factors, such as, 'group offending', planned acts, vulnerable victim, value of the items taken and using of weapons, would invariably invite for a higher starting point in sentencing.
   
9. In The State v. Timoci Delana [HAC 190 of 2008, 108, 113 and 126 of 2009 on 01st February 2010], Justice Goundar emphasised the above-mentioned facts as aggravating factors.
   
10. According to the Court of Appeal Judgment by Sheppard JA, Gallen JA and Ellis JA in Singh v. State {[2004] FJCA 8; AAU0008.2000S (19th March 2004)}, " 'robbery with violence' either actual or threatened, will always give rise to serious consequences". Following factors have considered as guidelines in sentencing.
    
    1. The extent of the loss arising from the criminal action.
       
    2. Vulnerability of the victim and the effect of them and their lives.
       
    3. Subsequent behaviour.
       
    4. Previous criminal record of the offender.
       
    5. Remorse (remorse expressed afterwards how genuine cannot carry as much weight)
       
11. According to Goundar J in State v. Vakararawa [2008] FJHC 114, "the dominant factor in assessing seriousness of any type of robbery is the degree of force used or threatened".
    
12. In view of the foregoing circumstances, I set my starting point at 4 years of imprisonment.
    

Aggravating Factors

13. You have committed this offence on a sales person of a Service Station. Due to their working conditions these type of victims are vulnerable as they always in possession of cash earnings.
    
14. The incident took place around 8.40 at night. You have used a Cane knife to threaten him.
    
15. Though the value of the items was minimal [$360] it was never recovered. This too will be an aggravating factor of the offence.
    
16. For the aggravating factors which I have outlined above, I add another 3 years to your term.
    
17. Your period of imprisonment now stands at 7 years.
    

Mitigating Factors

18. I must take into consideration the fact that you did plead guilty, at the earliest opportunity. Full allowance must be made for the early guilty plea. I would discount the term of imprisonment by 24 months for the guilty plea.
    
19. This will leave your sentence at 5 years.
    
20. In mitigation the accused filed written submissions. Further he addressed the Court by his oral mitigation. Your main concern was that if you have been sentenced immediately following the guilty plea in 2004 you must have served the sentence by now.
    
21. Further you stated that you are a 34 year old. Married with two children. And at present you are a serving prisoner. You are now remorseful for what happened. I deduct a further period of 12 months for your remorse and other mitigation.
    
22. Now your final sentence stands at 4 years.
    
23. On record, you have 08 previous convictions. You had been sentenced for similar offences since 1997. Therefore the Court does not wish to consider your prior custody period to extend further concession to your sentence under section 24 of the Sentencing and Penalties Decree 2009.
    
24. You Jonacani Nacagi today you are sentenced to 4 years imprisonment for the offence of Robbery with Violence. You will serve 2 ½ years of that term before being eligible for parole. Further you will serve this sentence concurrent to any other terms which you serve at present.
    
25. 28 days to Appeal.
    

Pronounced in open Court

Yohan Liyanage
Resident Magistrate

21st January 2013