State v Balatuku [2013] FJMC 243; Criminal Case 420.13 (20 June 2013)

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

CRIMINAL CASE NO.420/13

THE STATE

Vs

APOLOSI BALATUKU (ACCUSED 1),
& NEMANI BETAU (ACCUSED 2)

Ms. Suveni (S C) for the State
Accused in person
Date of Sentence: 20.06.2013.

SENTENCE

1. Both of you were 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

APOLOSI BOLATUKU and NEMANI BETAU, on the 29th day of April, 2013 at Nadi in the Western Division robbed one KALIVATI KARAVAKI of A Forme mobile phone valued at $65.00, the property of KALIVATI KARAVAKI.

2. Aggravated robbery is an indictable offence pursuant to section 311 of the Crimes Decree; however jurisdiction of this court to hear and determine this case has been extended by High Court by order dated 16th May 2013.
   
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. 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.
   
6. I therefore convict both of you as charged.
   
7. The facts of this case were that on the early morning of 29 April 2013 both of you assaulted and robbed one Kalivati Karavaki of his mobile phone. On that day the complainant was walking home when both of you grabbed him and stole his mobile phone. Both of you also punched and kicked the complainant wherein he received injury to his face and body. The mobile phone was not recovered.
   
8. Aggravating features were that: Show of disrespect of the complainant's property right and the law when you stole his personal belongings; Injuries and shock you caused to the complainant as a result of the robbery.
   
9. Mitigating factors were that: your personal circumstances, guilty plea, previous good character, reconciliation with the complainant and remorse. This is an offence which is not reconcilable. Your reconciliation with the complainant cannot carry much weight in meting out your sentence.
   
10. Your personal mitigations were as follows:-
    
    • (a) Bolotuku, you are 23 years of age and married. You told that your wife is pregnant. You are working at Navakai Dairy. You are sole breadwinner of your family. You seek forgiveness.
      
    • (b) Betau, you are 28 years of age, single and working at an Investment Co. You are living with your mother. You are also sole breadwinner of your family and seeking forgiveness.
      
11. Both of told that you have reconciled with the complainant and the complainant in court confirmed the reconciliation.
    
12. The offence 'Aggravated Robbery' carries a penalty of 20 years imprisonment according to section 311-(1) of the Crimes Decree.
    
13. The Supreme Court decision in Guston Fredrick Kean 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. AAU 0024 of 2005, Fiji Court of Appeal; Semisi Wainiqolo v The State, Criminal Appeal No. AAU 0027 of 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 Josaia Vakanawakoro HAC 179 of 2010 and State v Lepani Varani HAC 70 of 2010.
    
14. You did not use a weapon in committing this offence.
    
15. Taking all into my account, I would pick 6 years imprisonment as a starting point. In view of the above aggravating factors, I increase the sentence to 7 years. Reduce the sentence by 18 months to reflect your mitigation. Discount by 22 months for your guilty plea. Discount another 6 months for your previous good character. Both of you are first time offenders. You are in remand custody since 1 May 2013 hence I discount further 2 months to reflect the period spent in remand custody. Your final sentence is 3 years imprisonment. This means each one of you receiving 3 years imprisonment.
    
16. 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 your case I fix 12 months as non-parole period.
    
17. Offenders like you deserve punishment that fits the circumstances of the crime. The sentence must deter you and other would-be offenders from committing similar offences.
    
18. Since I have exercised extended jurisdiction of the High Court you can appeal to Fiji Court of Appeal within thirty (30) days.
    

Orders:

19. Each one of you is hereby sentenced to three (3) years imprisonment with a non-parole period of twelve (12) months. You will be eligible to be released on parole after twelve (12) months.
    

......................................................
M H Mohamed Ajmeer
Resident Magistrate
Dated at Nadi this 20th day of June 2013.