State v Selebula [2014] FJMC 4; Criminal Case 1616.2010 (8 January 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: -1616/2010

STATE

V

MALAKAI SELEBULA

For Prosecution : - Mr. Aman Dutt for the State
Accused : - Ms. Bano for the Legal Aid

Date of Sentencing Submissions: 08th January 2014
Date of Sentence : 08th January 2014

SENTENCE

1. MALAKAI SELEBULA, you were charged in this Court for one count of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree No.44 of 2009.
   
2. You pleaded guilty to the charge on 12th December 2013 and on 18th December 2013 admitted the summary of facts tendered by the State.
   
3. According to summary of facts on 11th September 2010 the victim was walking along Usher Street when you with two others grabbed him and stole a mobile phone valued at $30and cash of $55. You were arrested at Stinson Street handicraft center and in the caution interview admitted this offence.
   
4. I am satisfied that you made this plea on your own free will and without influence and therefore convict you for this charge.
   

LAW AND TARIFF

5. Maximum penalty for this offence is 20 years imprisonment.
   
6. His Lordship Justice Gounder 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".

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

"'Sentences for robberies involving firearms should range from six to eight years. A lower 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'

8. In Nawai v The State(HAA 023 of 2011) His Lordship Justice Madigan said:
   

"In the absence of any evidence of injury to the victim and in the light of evidence that the money stolen from the victim was returned to him a suitable starting point would perhaps be four years rather than eight"

Aggravating factors

9. The state in the sentencing submission submitted that the fear and trauma encountered by the victim, the offence was committed in a public street as aggravating this offence.
   

Mitigating factors

10. Mitigating factors in your favor are as follows;
    
    1. 26 years old
    2. Early guilty plea
    3. Seeks forgiveness
       
11. Considering the facts in this case I select 05 years as my starting point and add 03 years for aggravating factors to reach 08 years. For your mitigating factors deduct 04 years to reach 04 years imprisonment. Since you are not a first offender no discount is given for your past good behavior. Now your final sentence is 04 years imprisonment.
    
12. Pursuant to section 26(2) (b) of the Sentencing and Penalties Decree this Court has no power to suspend a sentence above 02 years.
    
13. Therefore you are sentenced to 04 years imprisonment for the offence of Aggravated Robbery contrary to section 311 (1) (a) of the Crimes Decree. This would be concurrent to your current sentence.
    
14. Pursuant to section 20(1) of the Sentencing and Penalties Decree I also fix a new single non parole period of 03 years.
    
15. Since this court is 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.
    

H.S.P. Somaratne
Resident Magistrate, Suva