State v Matea [2013] FJMC 315; Criminal Case 579.12 (27 August 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: 579/2012

THE STATE

–V-

LEPANI MATEA&
ANOTHER

For the State: WPC Fisher C.
For the Accused: Ms.Raisua L.[Legal Aid Commission]

SENTENCE

1. LEPANI MATEA, you have pleaded Guilty to the following Charge: Aggravated Robbery Contrary to Section 311 (1) (a) of the Crime Decree No. 44 of 2009 and the particulars of offence is as follows;
   

LEPANI MATEA and with ANOTHER on the 22nd day of April 2012, at Wairua Road, Tamavua in the Central Division, stole 1 x Taxi meter valued at $350.00, 1 x Car Stereo valued at $500.00, $160.00 cash, 2 x car speakers valued at $140.00, 1 x Alcatel mobile valued at $120.00, 1 x First Aid Kit valued at $14.00, 1 x Sunglasses valued at $20.00 and 1 x T-shirt valued at $10.00, all to the total value of $1,414.00, the property of RIYAZ KHAN.

2. You were convicted of the charge on your own plea of guilty. I am satisfied that you are fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you reads amongst others as follows; That;
   

On 22nd of April 2012 at about 12.30am at Wairua Road, Tamavua, Riyaz Khan (the complainant) of Muanikoso Housing, Nasinu, picked up Lepani Matea [Accused] and another from outside Purple Haze Nightclub and told to take them to Wairua Road, Tamavua. The [Accused] and another were seated in the back seat while their accomplice sat in front. Complainant entered Wairua Road when he was told to go straight to Roundabout; He stopped the taxi and told them to pay the fare of $9.00. Complainant heard [Accused] with his accomplice speaking in Fijian. Suddenly the Complainant was grabbed by the neck from behind by [Accused] and he felt something poking at his neck which he believed it was a weapon. At the same time, the front passenger searched the Complainant's pocket and stole the following items: 1 x taxi meter valued at $350.00, 1 x car stereo valued at $500.00, $160.00 cash, 2 x car speakers valued at $140.00, 1 x Alcatel mobile valued at $120.00, 1 x First Aid Kit valued at $14.00, 1 x sunglass valued at $20.00 and 1 x T-shirt valued at $10.00, all to the total of $1,214.00.

Complainant managed to free himself and jumped out and sat on the road. Subsequently the Accused and the accomplice fled, but the accused dropped his mobile phone accidently. The Complainant reported the matter to police and also handed the mobile phone over to the police. Accordingly the Police conducted a raid in the Tamavua-i-Wai Settlement in the morning and whilst enquiring, arrested [Accused] from his home. The [Accused] was interviewed under caution whereby [Accused] admitted to allegations put to him. The (Accused) was charged for one count of Aggravated Robbery: Contrary to Section 311(1) of the Crimes Decree Number 44 of 2009.The following items were recovered: 1 x car stereo valued at $500.00 and 1 x car speaker valued at $40.00 all to the total value of $540.00.

4. Aggravating Factors
   

According to the information revealed by the Summary of Facts placed before Court; the Accused LEPANI MATEA grabbed the complainant by his neck from behind by the [Accused] and the complainant felt something poking at his neck which he believed was a weapon.
The victim was a taxi driver. You have utilized the vulnerability and insecurity of the victim to carry out your criminal act. Specially as he was suddenly threatened and stolen on a public road whilst engaging in his livelihood as a person providing public transport as well. Below factors also should consider as aggravating factors.

1. It was committed as a group,
2. It was in a public place (road).

100. Level of intimidation and fear.
     

5. Mitigating Factors and Personal Background:
   

I consider following mitigation submission including your personal background submitted by the learned Counsel from the Legal aid Commission as follows: That you are –

(a). 24 years old; married with 1 child; unemployed; first offender; have completed studies in Electrical Engineering from the Training and Productivity Authority of Fiji; seeking forgiveness from Court and promised not to re-offend.
(b). There was low level violence used, hence the absence of any serious injuries.
(c). This offence was not pre-meditated as the accused took advantage of an opportunity to commit this particular offence.

6. Law, Tariff and guideline Judgments

I reproduce penal section for clarity. It says;

Section 311(1) (a) A person commits an indictable offence if he or she

(a) commits a robbery in company with one or more other persons; or

Maximum Penalty for aggravated robbery is Imprisonment for 20 years.

Tariff

Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprisonment

Hon. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054.2ha0; has summarized the guiding principles in sentencing in cases involving robbery. The dominant factor in assessing seriousnes any types of robbery is the degree of force used or threatened. The degree of injurinjury 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. (underline is mine)

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.

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"

7. Sentence

I now proceed to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.

The purpose of sentencing you for the offence of aggravated robbery in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature.

In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of your mitigation submissions, I pick 5 years as a starting point. I add 01 year to reflect above mentioned aggravating factors.

In considering your early guilty plea I deduct 02 years. I further reduce 06 months in view of migratory factors leaving a balance of 3 ½ years imprisonment period. I note that you are a first offender and entitle for a further discount. I deduct 06 months from your sentence for your previous good character.
Now your sentence reaches to 03 years of imprisonment period.

His Lordship Mr Justice Nawana stated in the case of Vilikesa Tilalevu at para 19:"It will only be in rare and exceptional circumstances that the Court may be required to consider a suspended term of imprisonment for violent offending. The public need for deterrence will often outweigh the personal needs of a young but violent first offender.'

The level of the tariff reflects the seriousness of the offence. Without doubt a custodial sentence will have an effect on your career prospects and personal life. However, it is consequence of your own conduct.

There are no exceptional circumstances which would justify a non-custodial sentence and also I do not see any compelling reasons to suspend your sentence fully. But considering your personal background I decided to suspend your sentence partially and your sentence imprisonment for 03 years is to be served as follows:

01 year of imprisonment period in custody and 02 years imprisonment period suspended for 3 years as to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.

I note that you have been remand in custody since 24thMay 2012 to 26thJuly 2012. You have spent more than 02 months in remand for this particular case. Section 24 of the sentencing and penalty Decree reads under the heading of "Time in custody before trial to be deducted" that "If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender." And also in Fiji court of Appeal in: Prasad v State [2010] FJHC 12; AAU 0111.2007(8th April 2010) at paragraph 6 stated:

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence. Although it is not necessary to make a precise calculation (Basa v the State [2006] FJHC 23: AAU0024.2005 (24th March, 2006)".

In all the circumstances I find it appropriate to consider the time you spent in custody. Therefore I deduct two months from your imprisonment period. Now your imprisonment period stands for 10 months imprisonment period. This 10 month to be spent in custody with immediate effect.

Should you commit any crime during the period of 3 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant to section 28 of the Sentencing and Penalties Decree.
Since this court exercising the extended jurisdiction of the High Court in your case, you may appeal against this sentence within 30 days with leave to the Court of Appeal.

--------------------------
Lakshika Fernando
Resident Magistrate
On this 27th day of August 2013