State v Raibono - Sentenceo [2014] FJMC 68; Criminal Case 1678.2012 (5 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: -1678/2012

STATE

V

KAVENI RAIBONO
TIMOCI RAIMATATA BROWN

Ms. Darshani Kumar for the State
Ms. Priya Lal ( Legal Aid) for Kaveni Raibono
Mr. Fesaitu ( Legal Aid) for Timoci Brown

Date of Sentencing Submission: 24th April 2014
Date of Mitigation submissions: 05th May 2014
Date of Sentence : 05th May 2014

SENTENCE

1. KAVENI RAIBONO, TIMOCI RAIMATATA BROWN you both were charged in this Court for following offences.
   

Count 1

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

Particulars of Offence

Kaveni Raibono and Timoci Raitamata on the 14th day of September 2013, at Nabua in the Central Division, robbed Kushal Deo Narayan of a Alcatel mobile phone valued at about $79, Casio wrist watch valued at about $80 and cash $35 the property of Kushal Deo Narayan.

Count 2

THEFT OF MOTOR VEHICLE: contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Kaveni Raibono and Timoci Raitamata on the 14th day of September 2013, at Nabua in the Central Division, dishonestly appropriated (stole) taxi registration no. LT 1899 Toyota Corona valued at $18,000 the property of Suriya Deo Narayan the property of Kushal Deo Narayan.

2. You both pleaded guilty to the charge on 24th April 2014 and also admitted the summary of facts tendered by the State.
   
3. According to summary of facts on 14th September 2013 you both with another hired a taxi driven by the complainant and at the Vura Road roundabout threatened him and stole his mobile phone valued at $79, wrist watch valued at $ 80 and cash of $35. You both also dishonestly appropriated ( stole) his taxi valued at $18,000.
   
4. I am satisfied that you both made this plea on your own free will and therefore convict you both for this charge.
   

LAW AND TARIFF

5. Maximum penalty for the offence of Aggravated Robbery is 20 years imprisonment.
   
6. 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".

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

"'Sentences for robberies involving firearms should range from sieight years. A lower range of four to seven years is appropppropriate 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"

9. Section 291 of the Crimes Decree prescribed 10 years imprisonment for the offence of Theft.
   
10. In Jone Saukilagini [2005]FJHC 13 Her Ladyship 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

11. Following are aggravating factors in this case for both accused.
    
    1. This was committed against a public service provider.
    2. Disregard of the property rights
    3. Committed in a public street
       

MITIGATING FACTORS

12. Now I consider the mitigating factors submitted by the learned counsels from the legal Aid.
    

KAVENI RAIBONO

1. 27 years old
2. Seeks forgiveness

100. First offender

4. All the properties recovered except the cash.
5. Cooperation with the police
   

TIMOCI BROWN

1. 28 years old
2. Seeks forgiveness

100. All the properties recovered except the cash.

4. Cooperation with the police
   

13. Considering the facts in this case I select 05 years as my starting point and add 02 years for aggravating factors to reach 07 years. For both of your mitigating factors I deduct 03 years to reach 04 years imprisonment. For early guilty plea as well as time in custody I further deduct 02 years to reach 02 years imprisonment. Now both of your final sentences are 02 years imprisonment.
    
14. Pursuant to section 26(2) (b) of the Sentencing and Penalties Decree this Court can suspend a sentence below two year.
    
15. KAVENI RAIBONO , you are a young first offender. You pleaded guilty early and also cooperated with the police .

15. In Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Madam Shameem stated:

"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."

16. Therefore you need to be given a chance to reform. Accordingly I sentence you to 02 years for the offence of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree and this will be suspended for 03 years.
    
17. If you commit any crime during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
18. TIMOCI BROWN , even though you are also a young offender you have previous convictions. For your previous offences you were given suspended sentences but you have not reformed and committed these offences. Therefore I do not see any reason to suspend this sentence.
    
19. Accordingly you are sentenced to 02 years imprisonment for the offence of Aggravated Robbery contrary to section 311(1) (a) of the Crimes 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.
    

H.S.P. Somaratne
Resident Magistrate, Suva