State v Anthony [2014] FJMC 133; Criminal Case 863.2010 (9 September 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: -863/2010

STATE

V

TERANCE EDWIN ANTHONY
ALVIN LATA
JANES RANJINA PRASAD

Ms. Fatiaki for the State
The 1st Accused in Person
Ms. Pretika for the 2nd and the 3rd accused

SENTENCE

1. TERANCE EDWIN ANTHONY, ALVIN LATA, JANES RANJINA PRASAD you all were convicted after a trial for following offences .
   

Count 1

AGGRAVATED ROBBERY: contrary to Section 311(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Terance Edwin Anthon, Alvin Lata and Janes Ranjina Prasad on the 14th day of May 2010 at Nabua in the Central Division robbed Dhirend Dutt.

Count 2

THEFT OF MOTOR VEHICLE: contrary to Section 293(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Terance Edwin Anthon, Alvin Lata and Janes Ranjina Prasad on the 14th day of May 2010 at Nabua in the Central Division stole a motor vehicle namely a white Toyata Caldina Taxi, registration number LT2585, the property of Sanyo Cabs.

2. It was revealed in the trial that on 14th May 2010 all of you robbed the one Dhirend Dutt at Nabua and also stole his motor vehicle.
   

LAW AND TARIFF

3. Maximum penalty for the offence of Aggravated Robbery is 20 years imprisonment.
   
4. His Lordship Justice Goundar in State v Manoa [2010] FJHC 409; observed:
   

"The maximum penalty for robbery with violence under the Penal Code is life imprisonment, while the maximum penalty for aggravated 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. I hold this for two reasons. Firstly, the established tariff of 8 to 14 years under the old law falls below the maximum sentence of 20 years under the new law. Secondly, under the new law, aggravated robbery is made an indictable offence, triable only in the High Court, which means the Executive's intention is to treat the offence seriously".

5. In Sakiusa Basa vs. the State (nal Appeal AAU 24/2005), her Ladyship Justice Shameem held that:
   

"'Sentences for robberies iing firearms should range from six to eight years. A lower range of four to seven years is s is appropriate where firearms are not used and the premises are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences should be considered aggravating features. The sentence may be reduced where the offender has no previous convictions, has pleaded guilty and has expressed remorse. This list of aggravating and mitigating features is by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case'

6. The tariff for the violent robbery of Taxi drivers is a sentence between 4-10 years imprisonment, depending on the force used or threatened. ( State v Tamani [2011] FJHC 725; Joji Seseu v State [2003] )
   
7. For the Theft of motor vehicle maximum penalty is 10 years imprisonment. In Jone Saukilagini [2005]FJHC 13 her Ladyship Madam Justice Shameem held that "the tariff for simple larceny on a first conviction is from two to nine months. In cases of larceny of large amount of money sentence of 18 months to three years have been upheld by the High Court
   

AGGRAVATING FACTORS

8. Following are aggravating factors in this case.
   
   1. This was committed against a public service provider
   2. Disregard of the property rights of other people.
      

MITIGATING FACTORS

9. Following were submitted as mitigating factors by the 1st accused as well as the learned counsel for the 2nd and the 3rd accused. .
   

1st accused

1. 25 years old
2. Extended family depend on him

100. Seeks forgiveness

4. Most of the items were recovered
5. First offender
   

2nd accused

1. 26 years old
2. Parents are sickly

100. Seeks forgiveness

4. First offender
   

3rd accused

1. 26 years old
2. Married with a child of one month

100. First offender
     

10. Considering the facts in this case I select 04 years as my starting point for the offence of Aggravated Robbery ( 1st count ) and add 02 years for aggravating factors to reach 06 years. For the personal mitigating factors and past good behaviors I deduct 04 years to reach 02 years imprisonment.
    
11. For the Theft (2nd count) I select 06 months and add 06 months for aggravating factors. Deduct 04 months for mitigating factors to reach 08 months imprisonment. This is concurrent to the 1st count.
    
12. Pursuant to section 26(2) (b) of the sentencing and penalties Decree this Court can suspend a sentence below two years.
    
13. In State v Patrick Fong [FJHC 10/2004] his Lordship Justice (as he then was was ) said,

'Much has been said of attacks on taxi dr . Thrt hurt has uded thed that the need for harsh deterrent sentences to protect taxi drivers,thnd the transportsport facility they provide for the c, faweighs the personal mitigating circumstances of u of unthinnthinking or alienated young men: Peni Raiwalui v The State (unrepo Suva. App. No. HAA030AA030.03S,.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".

14. Again in Vilikesa Koroivuata v The State(supra) Justice Gates said:
    

"Violent and armed robberies of taxi drivers are all too 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 instill in prospective muggers the knowledge that if they hurt or harm a taxi driver, they will receive a lengthy term of imprisonment".

15. In State v Kotobalavu & others HAC 43/2012 his Lordship Justice Madigan after citing Tagicaki & another HAA 019.2010, Vilikeas (supra) observed:
    

"Violent robberies of transport providers (be they taxi, bus or van drivers) are not crimes that should result in non-custodial sentences, despite the youth or good prospects of the perpetrators...."

16. In State v Waisiki Raqici ( Criminal Case 366-368/11) his Lordship Justice Goundar stated:
    

"The purpose of sentence that applies to the offenders is both special and general deterrence if the taxi drivers are to be protected against wanton disregard of their safety. I have not lost sight of the fact that Waisiki and P.L are first time young offenders. I bear in mind that the first time young offenders are generally given non-custodial sentences as a measure of rehabilitation. But the ultimate approach to a sentence is that the punishment must fit the crime, even if the offenders are young".

17. All the above guideline judgments are clear that a suspend sentence is not appropriate in this kind of offence which involved public service provider whatever the mitigating factors are. But considering the young age as well as other mitigating factors I believe this is a fit and proper case for partly suspended sentence.
    
18. Therefore you all are sentenced to 02 years imprisonment for the offence of Aggravated Robbery and Theft. From that you all have to serve 06 months in prison whilst remaining 18 months will be suspended for 03 years.
    
19. If 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.
    
20. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

30th July 2014

H.S.P. Somaratne
Resident Magistrate, Suva