State v Laba [2013] FJMC 221; Criminal Case 45.2013 (30 May 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case HAC No: - 45/2013

STATE

V

SAIMONI LABA
APISALOME DELAIBATIKI

For Prosecution : - Mr. Paka for the ODPP
1st and 2nd Accused : - Mr. Tawake from the Legal Aid

SENTENCE

1. SAIMONI LABA, APISALOME DELAIBATIKI you both were charged in this Court for the offence of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Decree No 44 of 2009.
   
2. The High Court gave the extended jurisdiction to hear this case and you both pleaded guilty to the charge on 26 March 2013.
   
3. According to summary of facts presented by the State Counsel this offence was committed on 16 Dec 2012 at Taunovo Bay Resort, Navua. You both grabbed the victim, dragged him to a lonely place and took his wallet which contained $25.00. You both admitted these facts.
   
4. I am satisfied that both of you fully understand the legal effects of your pleas and your pleas were made voluntarily. Accordingly I convict first accused for this offence. The second accused being a juvenile I found him guilty also for this offence.
   
5. Maximum penalty for this offence is 20 years imprisonment.
   
6. His Lordship Justice Goundar in State vs Manoa [201HC 409; HAC061.2010; (60; (6 Aug 2010) found that tariff for this kind of offence ranges from 8-14 year imprisonment. Hidship stated that "The maximum penalty for robbery with violence under the penal code isde is life imprisonment, while the maximum penalty for aggravating robbery under the Crimes Decree is 20 years imprisonment. Although the maximum sentence under the decree has been reduced to 20 years imprisonment, in my judgment the tariff of 8 to 14 years imprisonment established under the old law can continue to apply under the new law."
   
7. Considering the facts in this case as well as the value of the properties I take my starting point as 08 years imprisonment.
   
8. Aggravating factors in this case are that both of you were drunk at that time, attack on an innocent victim in a deserted area, lack of respect for the other's properties. For these I increase both of your sentences by 01 year to reach 09 years imprisonment.
   
9. Following will be considered as mitigating factors.
   

1st Accused

1. 22 years old
2. studying in Nabua Secondary school
3. Asked leniency and forgiveness
4. Remorseful
5. First offender
   

2nd Accused

1. 18 years old
2. Seek forgiveness from the court
3. Remorseful
4. First offender
   

10. Both of you have pleaded guilty at the first available opportunity and entitled for 1/3 reduction. Now the sentence would be 06 years.
    
11. For the above mitigating factors I deduct another 04 years to reach 02 years imprisonment.
    
12. I am mindful of that fact that under s 26(1) (2) of the Sentencing and Penalties Decree this Court can suspend a sentence which is below 02 years.
    
13. The state in their submission has asked for 2-3 years custodial sentence for both of you. On the other hand the learned counsel from Legal Aid has asked for a sentence which would let both of you to rehabilitate.
    
14. You both are young first offenders. The amount involved in this case is very small ($25.00) and as the State agrees this was not a planned offence. No offensive weapon was used and violence used was minimum. This can be best described as an act of opportunity on both of you.
    
15. For this kind of offence normally a custodial sentence is inevitable. Reasons are to deter people from committing offence like this as well as to protect society and to punish offenders.
    
16. On the other hand I believe in the long run giving custodial sentence would not be a good move to the society. Sending both of you who are young first offenders to prison would let you mix with hard core criminals and that needs to be prevented. Also both of you should be given a chance to reform. Madam Shammem correctly pointed out this in Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006). Her Ladyship stated ;
    

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

17. Therefore for the purpose of reform you both of you will be given a suspended sentence. You both are sentenced to 02 years for the offence of Aggravated Robbery and this will be suspended for 03 years.
    
18. If you commit any crime during the period of 3 years and found guilty by the Court you can be charged under section 28 of the Sentencing and Penalties Decree.
    
19. Also both of you have to pay $100.00 each as a fine (1penalty unit). In default 10 days imprisonment.
    
20. Since this court is exercising the extended jurisdiction of the High Court in your case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

30 May 2013
H.S.P.Somaratne
Resident Magistrate, Navua.