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Magistrates Court of Fiji |
IN THE MAGISTRATE’S COURT AT NASINU
(Extended criminal jurisdiction of the High Court of Suva)
Criminal Case No:HAC189 of 2011
M.C Nasinu No: 684/2011
STATE
v
WAISEA SASALU
PCSANIL for the prosecution
The accused represent by Legal Aid Miss. Kean T.
ORDER MADE UPON FINDINGS
1. You, WAISEA SASALU are here, to be sentenced on admission of guilt on your own accord for the following offence namely:
AGGRAVATED ROBBERY: Contrary to Section 311(I) (a) of the Crimes Decree No. 44 of 2009. And THEFT OF MOTOR VEHICLE: Contrary to Section 291 of the Crimes Decree No. 44 of 2009
WAISEA SASALU WITH OTHERS on the 16th day of July 2011 at Nasinu in the Central Division robbed one Arvin Avinash Sami and stole $12 cash and 1 x taxi meter valued $200.00 all to the total value of $212.00 the property of the said Arvin Avinash Sami and stole taxi registration number LT1345 valued at $12,000.00 the property of Nasinu Express Taxis.
2. I am satisfied with your pleais unequivocal and that you understand the repercussion of your plea. I am further satisfied the facts of this case present, included and proved all the elements of this offence.
3. According to the facts, (which you have admitted on21/08/2013) , Accused, WaiseaSasalu, B4, 16 years, unemployed of Yadrana Settlement, Nadonumai with B1, B2 and B3on 16/6/11 at about 1900 hours at Ambala Place, Centerpoint assaulted one Arvin Avinash Sami, PW1, 37 years, taxi driver of Lot 24 Shiri Ram Place, Namadi Heights and robbed $12.00 cash and 1 x taxi meter valued at $200.00 all to the total value of $212.00 and On the above mentioned same date, time and place B4 with his accomplices hired the taxi registration number LT1345 from ScottsStreetin front of Village Six Cinema for them to be taken to Ambala Place. Whilst reaching their destination B4 punched PW1 then B1 and B2 pulled the complainant from behind as they were seated behind PW1. B1, B2 and B4 pushed the taxi as it developed engine problems but couldn’t start it. They left the vehicle there ran up the road got into another taxi and left.The matter was reported at Valelevu Police Station whereby he was arrested, interviewed under caution and later charged for a Count of Aggravated Robbery Contrary to Section 311 (1)(a) of the Crimes Decree No. 44 of 2009 and another Count of Theft of Motor Vehicle Contrary to Section 291 of the Crimes Decree No. 44 of 2009. B4 will appear in custody at the Nasinu Magistrate Court.
4. Section 311(1) of the Crimes Decree No. 44 of 2009 clarifies the Aggravated Robbery -A person commits an indictable offence if he or she —
(a) commits a robbery in company with one or more other persons; or
(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.
Penalty — Imprisonment for 20 years.
5. Tariffs vary the gravity and nature of these offences.In ManoaBaleinakeba v State [2010] HAA 8/10S 16 June 2010His Lordship Madigan J.Says “given the jurisdictional restraints from MCs, the proper tariff there now should be 7 to 10 years”.Court notes that this Crime was introduced by new Crimes Decree 2009 and earlier it was robbery with violence and sentenced attracted life imprisonment. In State v VilikesaTilalevu and SavenacaMataki(2010) FJHC 258, HAC081.2010 (20 July 2010))His Lordship PriyanthaNawana J. held for the offence of aggravated robbery tariff i4 years imprisonmenonment following the guidelines ofState vMataiasiBulivouSusu[2010] FJHC 226.
6.
7. Section 30 (3) of the Juveniles Act stipulates that: "A young person shall not be ordered to be imprisoned for more than two years for any offence".
8. Section 32(1) of the Juveniles Act stipulates that:: "Where a Juvenile is tried for an offence and the Court is satisfied of his guilty, the Court shall take into consideration the manner in which, under the provisions of this or any other written law, the case should be dealt with, namely-
(a) By discharging the offender under Section 44 of the Penal Code;
(b) By ordering the offender to pay a fine, compensation or costs;
(c) By ordering the parent or guardian or an offender to pay a fine, compensation or costs;
(d) By ordering the parent or guardian of the offender to give security for the good behavior of the offender;
(e) By making a care order in respect of the offender;
(f) By making a probation order in respect of the offender;
(g) Where the offender is a young person, by ordering him to be imprisoned;
(h) By dealing with the case in any other lawful manner".
Case Authorities
"From these authorities, the following principles emerge. The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury 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.
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 circumstantial of the offender, first offence of violence, voluntary return of property taken paying a minor part and lack of planning involved".
Following facts were revealed by the summary of facts placed before the court and will be considered that You have attacked on public transport sector; the Value of property andSome Property has not recovered until today and you have involved inGang activity as aggravating factors.
14. In your mitigation you said that you are 18years old, currently serving as at Nasinu prison .at the time of the offence you were juvenile and delinquent. At the time of the arresting you were a student at Nabua secondary school. Even though there is one conviction against you have committed this offence prior to date of sentence of that matter. According to that sentence you were released with condition. I note that some of the conditions were you to undergo vocational training and not to reoffend. You said that you were with wrong group in wrong time. You ask forgiveness and leniency. You said you have learnt a lesson and you ask non-custodial sentence. You plead guilty at first available opportunity.
15. You have asked non-custodial sentence. I noted that you have committed this offence on 16/06/11. And arrested and produced to
court on 24/06/11. Since then the prison authorities and prosecution has fail to take necessary step in this matter until 21/08/13.
You have been remanded until you were imprisoned in Nasinu prison for another matter since 6/9/12 at Juvenile case no: 10/11. You
have been kept in remand custody for approximately more than 15 months of time without producing to court to take steps according
to law. This court think it is as a breach of article 14 (g) at bill of right chapter on fundamental right secured by constitution
of the republic of Fiji.
"Right of accused persons"
14 – (2) Every person charged with an offence has a right –
(g) to have the trial begin and conclude without unreasonable delay.
Since the Judiciary of Fiji is abide by Bill of Rights of Fijian Constitution this Court thinks it has a duty to correct above mentioned procedure lapse or mistake. Therefore you are entitling for reduction of considerable time out of the punishment for the time you spent at Remand Prison.
16. According to previous conviction record you have been found guilty for 2 matters which are robbery in case number C.F11/11 on 10th May 2012 and at matter number C.F 10/11 on 6th September 2012 (which has not included at conviction record). But the time of the course of actions of this matters are months of May and June 2011. The first date of proceedings of this matter is 20/07/2011 since then you were in custody therefore I consider you as a first offender. The main purpose of recording of the conviction is monitoring the rehabilitation progress of the accused and sentencing of the accused accordingly. Therefore to consider an accused person not as a first offender the course of the action of the second case must have occurred at latter stage after 1st conviction but not before.
17. According to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009."As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."
18. It was enunciated In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September1994) S W Kepa J that the fact that Appellants are first offenders t to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has red and exhausted all other alternative sentences.
19. InPrasad vsad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994),Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first ofrs."
20. It has been noted inPrasad v The State [1994] FJHC 132 (Supra)thatcriminologists recognise that a prison sentence should be the last resort especially where a foffender is concernederned unles chae charge is very serious or the offender is dangerous and imprisonment is called for inpublic interest or in the interest of the offender himself.
21. SiSingh v The State [2000] FJHC 115; Haa0079j.2000s (26 October 2000)Shameem J went on saying;
"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."
22. Nariva v The State[2006] FJHC 6; HAA0148J.2005S (9 February 2006)Shammem J again stressed;
"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."
23. In State v Mocevakaca [1990] FJHC 87; [1990] 36 FLR 19 (14 February 1990) Fatiaki J (As he then was) dealt with similar type of situation. His Lordship stressed on sentencing in young
offenders. His Lordship added;
"This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty
to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders
out of prison even I might add at the risk of being lenient. Needless to say, in the case of young first offenders there can rarely
ever be any conflict between the general public interest and that of the offender. If I may say so society has no greater interest
than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment
or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important
consideration in sentencing young first offenders."
24. This case was a rape case and 5 years imprisonment was quashed and varied. The accused bound over in the sum of $200 with his father as surety, to keep the peace and be of good behaviour for a period of 2 years and released forthwith.
25. In this legal backdrop, in line with the Sentencing Principles, the summary of facts, mitigation and the nature of offences, I RECORD A FINDING OF GUILT ON 1st & 2nd COUNTS AGAINST THE ACCUSED.
26. I pick 2 years imprisonment for the 1st count and 9 months for the 2nd count. I reduce 1/3 of the same for early plea of guilt. Now your punishment is 16 months for the 1st count and 6 months for the 2nd count. You have been in remand since 24/6/2011till you were punish on 6/09/2012 for juvenile case no: 10/11. Therefore I reduced 10 months from present punishment on 1stcounts since you have spent 15 months at remand due to the inefficiency of the prison authority which you have no control at all. Now your punishment period is 6 month for the 1stcount and 6 month for 2nd count only. You will serve 3 months of this imprisonment terms and which will run concurrently to your present serving with effect from today. And I suspend the remaining 3 months imprisonment term for 2 years with effect from 1st of October 2014.
27. I act under section 44 (1) of the Sentencing and Penalty Decree and impose following conditions under sections 15(1) (g) and 44(3) of said Decree.
A] The accused is bound over for sum of $ 1000 for next 2 years to complete his studies at Nabua secondary school and for good behaviour. If the accused breach these conditions, this bond or part of it may be forfeited or in default, the accused be sentenced to the prison in appropriate penalty units.
B] In addition to the above bond, the accused should not commit any offence whatsoever during this period. If you committed any offence or breached any condition you will be sentenced for these offences according to the law.
C] The accused is ordered to report last Sunday of every month between 6am to 6pm to nearest Police Station during 2 year. Therefore the accused is placed on police supervision and he should not change his permanent address during this period of time.
D] The accused is placed under the guidance and supervision of Probation officer of Nasinu. Therefore, Accused should contact the Probation officer forthwith. Accused should follow the Probation officer's advice and probation officer is directed to give timely, appropriate guidance and assistance to the accused and must call attendance report of the accused from the Nabua Secondary School once a month.
28. Copies of this sentence are given to the accused and the police/State and nature of sentence and police/ probation supervision is explained to the accused. Senior Court officer of this court is directed to issue a copy of this order to Nasinu Probation Officer to facilitate this order. Police and Probation officer of Nasinu are ordered to file report any breach of these condition forthwith (if any).
29. 28 days to appeal.
On 06thday of June 2014 at Nasinu, Fiji Islands
N. Rupasinghe
Resident Magistrate
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