State v Puamau [2014] FJMC 180; Case 1123 & 1121.2013 (4 November 2014)

IN THE MAGISTRATE’S COURT AT NASINU
(Extended criminal jurisdiction of the High Court of Suva)

Criminal Case No:HAC343 of 2013
M.C Nasinu Case No.1123/13&1121/13

STATE

v

SIMIONE PUAMAU
JOAPE VATU

State Counsel Mr.Paka for the State
For the 1 Accused: Ms.Ratidra( Legal Aid Commission)
2 Accused:Mr.Willam N.

SENTENCE

1. You, SIMIONE PUAMAU and JOAPE VATU are here, to be sentenced on admission of guilt on your own accord for the following offence.

2. Charge reads as follows;in case number 1123/23
AGGRAVATED ROBBERY: Contrary to Section 311 [1] (a) of the Crimes Decree No. 44 of 2009

SIMIONE PUAMAU and JOAPE VATUon the 31st day of August 2013 at Salua Street, Nakasi, Nasinu in the Central Division robbed Prem Chand one mobile phone valued at $49.00, canvas valued at $100.00 and cash money $35.00 and immediately before the time of such robbery did use personal violence to the said Prem Chand.

in case number 1121/23
SIMIONE PUAMAU and JOAPE VATU on the 3rdday of September 2013 at Salua Street, Nakasi, Nasinu in the Central Division robbed John Prasad one mobile phone valued at $250.00, and immediately before the time of such robbery did use personal violence to the said John Prasad.

3. I am satisfied with your pleasare unequivocal and that you both understand the repercussion of your pleas.

4. (i) According to the facts of case no:1123/13, (which you have admitted; The accused person is one SimionePuamau (Accused 1) age 19 years, unemployed of Lot 13 Siriti and Joape Vatu aged 20 years, student at FNU of NauluVillage.The complainant in this matter is Prem Chand, taxi driver of Lot 12 Nadaku Lane, Waila 3A.On the 31/08/13 at about 6.00pm two accused got in the taxi of the complainant and requested him to take them to Salua Road. As they reached Salua Road the first accused Simione Puamau got while the other accused Joape Vatu. The complainant stopped the taxi and the accused who was sitting in front got out of the taxi and grabbed the complainant’s neck while the other two accused persons grabbed the complainant from behind. The accused who stepped outside grabbed the complainants phone FORME brand valued $49.00, $35.00 cash and a canvas worth $100.00 from the complainant. Both were caution interviewed and they admitted to the offence. Accused 1 admitted to the offence in Q27 – 47 while Accused 2 made admissions in Q15 – 35.

(ii) According to the facts of case no:1121/13, (which you have admitted; 1. The Accused, SimionePuamau B1 aged 19 years, unemployed, of Lot 30 Siriti Street, Nakasi and Joape Vatu B2 aged 20 years, student of Naulu Village, Naulu and another known as Jak. The complainant John Prasad PW1 aged 32 years, taxi driver of Lot 32 Kavika Place, Naulu and Dharmendra Chand PW2 aged 44 years, unemployed of Lot 32 Kavika Place, Naulu. The witness namely Ranjit Singh PW3 aged 37 years, teacher of Lot 31 Kavika Place, Naulu, Aseri Daveta PW4 aged 47 years, Police Officer of Nakasi Police Station, IsikeliPokodreu PW5 aged 27 years, Police Officer Nakasi Police Station, Lavenia Qiodravu PW6 aged 29 years, Police Officer of Nakasi Police Station, PC 3479 Parmen PW7 aged 35 years Police Officer of Nakasi Police Station and PC 3439 Satui PW8 aged 35 years Police Officer of Nakasi Police Station.On the 3rd day of September 2013 PW1 was driving his taxi registration number LT2827 along Kings Road 9 Miles coming back from Waidamudamu 10 Miles.B1 stopped the taxi and told PW1 to take him to Nasinu Muslim School.PW1 agreed to the request of B1 and took B1.B1 when reached Nakasi Road junction B1 told PW1 to pick the grog from Nakasi.PW1 went through Nakasi Road and B1 told PW1 to stopped where B2 and other suspect got into and then PW1 went through to Nakasi.B1 told PW1 to go to Salua Street, Nakasi. PW1 whilst entering Salua Street, Nakasi noticed that it is a vacate place and stopped in the junction to the Farm Road of Salua. The other suspect whom is known to B1 and B2 as Jak took hold of PW1 from the back on the neck and then PW1 started to grab the tilt of the money but no money was found. B2 went out and also struggle with PW1 about the key but over powered. During the struggle the other suspect grabbed the mobile phone of PW1 which was in the desk board and then PW1 took the wheel brace and hit the other boy and landed on the hand and B1 and B2 fled away from the scene with the other boy.B1 and B2 fled away from the scene and went to Kavika Place and sat in the drive way when after a while B1 and B2 moved into the veranda of the house of PW2.PW3 who is the nearby neighbour of PW2 ranged PW1 about the key but over powered. PW4 who was on foot patrol noticed B1 and B2 been chased by PW2 and the family when PW4 arrested B1 and B2 and brought them into the Station. B1 and B2 was interviewed under caution and admitted to the robbery and trespass.Upon evidence on hand B1 and B2 was charged for one Count Aggravated Robbery Contrary to Section 311 of the Crimes Decree No. 44 of 2009 and Second Count of Criminal Trespass Contrary to Section 387 (4)(b) of the Crimes Decree No. 44 of 2009.B1 is now appearing in custody at Nasinu Magistrate Court.

5. Section 311(1) (b) 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.

6. Tariffs vary the gravity and nature of these offences. In ManoaBaleinakeba v State [2010] HAA 8/10S 16 June 2010 His Lordship Madigan J. held that; 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 Priyantha Nawana J. held for the offence of aggravated ro tariff iiff is 8-14 years imprisonment following the guidelines ofState vMataiasi BulivouSusu[2010] F26.InState v Rokonabete [2008] FJHC 226 ranging from 4 years to 10 year years imprisonment, Justice Goundar stated (at p.6):

"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.

[10] 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 sentence, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part and lack of planning involved".

In State v Susu [2010] FJHC 226 Justice Goundar sentenced the young first offender for three counts of robbery with violence to 3 years imprisonment where the driver of the taxi driver was threatened with death and then later gagged and dumped into the boot.

In State v Tamani [2011] FJHC 725 Justice Goundar stated:

'[17] Sentences for robbery of taxi driver range from 5 years to 10 years imprisonment depending on force used or threatened (JojiSeseu v State [2003] HAM043/03S (10 December 2003); Peniasi Lee v State[1993] AAU 3/92 (apf HAC 16/91)".

In the case of State v Nadiri (2013) FJHC 477 the tariff of aggravated robbery ranged from 4 years to 10 years imprisonment. It was stated that if force and threats were used then sentencing should start at the higher end of the tariff.

7. This court noticed that there are aggravating factors such as attacking public transport driver and use force jointly for robbery.

8. I consider the mitigation of 1st accused. In your written mitigation you tell you are 19 years old, single. You said you will not re-offend. You have shown remorse on your act. You sought non-custodial sentence and you are a first offender. You are coming from a poor and disadvantaged family. You have 6 sisters and 1 brother and your mother supports the family. You intend to engage in higher education as you desire to go to Maritime School.

And the 2nd accused stated in his mitigation that you are 22 years old, single. You said you will not re-offend. You have shown remorse on your act. You sought non-custodial sentence and you are a first offender. You are the 2nd eldest of 10 siblings of the family. You intend to engage in Missionary work with the Latter Day Saints (LDS) Church. You both 1st and 2nd accused s have no previous convictions.

9. The offence you have committed is very serious, grave crime. This court understands the plight and fear of victim and gravity of offence. In that sense, you are attracted immediate custodial sentence. On the other hand both of you are first offenders.

10. Since the one of the main aspect of judicial process is rehabilitation this court is considering what is most suitable solution with regard to this case. According to sentencing principles and decided cases in this regard confirms rehabilitation must be given priority.

11.Sentencing and Penalty Decree 2009 Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a)the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c)the nature and gravity of the particular offence;

(d)the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g)the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i)the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

12. S W Kepa J enunciated In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) that the fact when Appellants are first offs ought to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after thet has explored and exhausted all other alternative sentences.

13. InP>Prasad 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 firfenders."

14.p>14. It has been noted in Prasad v The State [1994] FJHC 132 (Supra)that criminologists recognise that a prison sentence should be the last resort especially where a first offender ncerned unless the charge irge is very serious or the offender is dangerous and imprisonment is called for in the public interesin therest of the offender himself.

15. Singh 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."

16.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."

17. In a Rape charge, inState v Mocevakaca [1990] FJHC 87; [1990FLR 19LR 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."

18.This court is mindful on t he main object of sentencing as deterrent and prevents the accused by doing another crime. By constant monitoring and supervision will prevent to do another crime by the offenders. If the offender can be reformed or rehabilitated and if the court is satisfied with procedure then an alternative sentence could be adopted.

19. Section. 16. (1) of said Decree gives powers to that. It says "In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including: —

(a)the nature of the offence;

(b)the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects."

20. Section 45(1) gives power to record a non-conviction. It Says;

"A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction"

45(2) States that "A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceedings for a period of up to 5 years and release the offender upon the offender giving an undertaking to comply with the conditions applying under sub section (2), and any further conditions imposed by the court."

21. After considering the fact, law and mitigation this court imposed following condition upon 1st and 2nd accused. That;

[a]The 1st accused to continue with his studies at Fiji Maritime Academy and tender progress report from the head of the Academy .

[b] The 2nd accused to continue with his missionary work at LDS Church and tender confirmation letter from bishops of the church.

[c] The 1st and 2nd accused will pay $ 150 each as compensation to the victim of case No: 1123/13 within 2 months from today and will tender letter/recept from the registry.

[d]The 1st and 2nd accused warned not to reoffend at the time of adjournment.

[e] Upon successful complying with above conditions and tendering above documents this court will consider entering non conviction for The 1st And 2nd accused. If the accuses fail or breach the above condition sentence will be issued accordingly.

22. Subject to below conditions this court adjourned the proceeding of this matter until 4th November 2015.

23. 28 days to appeal.

On 4th November 2014 at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate