State v Rawaisavu [2015] FJMC 43; Criminal Case 54.2012 (27 March 2015)

IN THE RESIDENT MAGISTRATE COURT
AT LAUTOKA FIJI ISLANDS

CRIMINAL CASE NO 54 Of 2014

STATE

vs

RATU SISA SAVUWAITUI RAWAISAVU

BEFORE : Resident Magistrate, Kashyapa Wickaramasekara
DATE : Friday 27th March 2015
COUNSEL : WPC Marica for the State
Accused in person

SENTENCE

1. You, RATU SISA SAVUWAITUI RAWAISAVU,were charged by this court, for one count of Robbery punishable under Section 310 (1) (a) (i) of the Crimes Decree No. 44 of 2009.
   
2. The Charge and Particulars of Offence are as follows:
   

Statement of Offence

Robbery:contrary to Section 310 (1) (a) (i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

RATU SISA SAVUWAITUI RAWAISAVUon the 29th day of November 2013 at Lautoka in the Western Division robbed one IpuRopate of Forme mobile phone valued $ 99.00 and wallet containing $ 45.00 cash and immediately before the time of such robbery used force on the said IpuRopate.

3. You pleaded guilty to the said offence on the 24thMarch 2015 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence. You further admitted the Summary of Facts which were read over and explained to you in court on this day. I have carefully considered the SOF and finds that it supports all elements of the charge and thus the charge of Robbery is established through the facts. I therefore your plea to be unequivocal and as such find you guilty as charged and convict you on the count of Robbery.

4. Summary of facts, as admitted by you before the court, revealed that this offence was committed on the 29thNovember 2013 around 8.30 p.m., at a track connecting 'Ah Yong' street and Golf course, Banaras, Lautoka.

Further, the summery of facts revealed, that you robbed the Complainant, a 52 year old carpenter from Banaras whilst he was using his mobile phone.

Briefly the facts reveal that, whilst the Complainant was standing under a tree using his mobile phone, you had confronted him from behind grabbed the mobile phone and snatched the wallet from the back pocket of the Complainant and had fled from the scene.

Complainant upon receiving information on your identity had reported the matter to the police.

However you were arrested only on the 29th January 2014 by police and upon being interviewed under caution had admitted to the offence.

5. Having considered the summery of facts in this case, along with the facts in mitigation, I shall direct myself to consider the appropriate sentence on you under theral pril principles and guidelines on sentencing and range of sentencing orders a court can make as set out in Sections 04 and 15 of the Sentencing and Penalties Decree 2009, in line with thectives thereof.

6. The punishment for Robbery under310 (1) (a) (i) of the Crimes Decree No. 44 of 2009, is 15 years imprisonment.

7. There are not many cases which discuss the Tariff for this offence under the Crimes Decree 2009.Under the old Penal Code there was no distinction in the imprisonment in respect of this offence.

8. However, the Crimes Decree 2009 has distinguished two instances of the offence by separately identifying an aggravated form of the offence. The punishments for these distinguished offences drastically vary from the Penal Code.

Thus, under the Crimes Decree 2009 the offences of Robbery and their punishments are as follows;

Robbery : Imprisonment for 15 years

Aggravated Robbery : Imprisonment for 20 years

It is established Tariff, for the offence of Aggravated Robbery an imprisonment term between 08 to 14 years(Guston Fredrick Kean vs. The State 2011C) 11 (12 Au12 August 2011).&#16>;

In respect of cases which refer to the tariff regarding the Crimes Decree offence of Robbery, I findfollocases useful and authoritative.

1. T1. The case of State v Nakeli [2012] F12] FJHC 1211; HAC29.2012 (5 June 2012) where Hon. Justice Thurairaja J held thus;

"Section 310 (1) of the Crimes Decree prescribes a maximum sentence of 15 years imprisonment for the offence of Robbery.

Tariff for the offence of Robbery was discussed in State –v- Tuiyanawai (2005) 180 were between 4 years to 7 years imprisonment."

2. The case of Ali v State [2013] FJHC 651; Criminal Appeal Case 12.2013 (29 November 2013) where Hon. Justice Sudarshana De Silva J held thus;

"In considering the grounds against the sentence the learned Magistrate had followed the following tariff judgments:

State v Tuiyanawai [2005] FJHC 180; HAC 0022S.2004S (14 July 2005) State v Nakeli [2012] FJHC 1211; HAC 29.2012 (5 June 2012) The tariff for robbery is 4 - 7 years according to these judgments."

9. Thus following the above mentioned cases and the facts outlined in the foregoing paragraph, I hold that the appropriate tariff for this offence of Robbery under the Crimes Decree 2009 is an imprisonment term between 04-07 years.

10. I now turn my attention to the facts in mitigation. You in mitigation stated; that you are 23 years old, single and unemployed.

You were remorseful and apologized to Court.

Prosecution informs that you are not a first offender sinceyou were convicted in the Lautoka M/C case CF 134/14 by this court. However the court note that it was for an offence committed on the 08/03/2014. As such this court shall consider you to be a first offender for this case.

Court shall further consider your guilty plea saving time and resources of the state and the court in mitigation.

Moreover, you were remanded by court for this offence on the 20/03/2015 upon a Bench Warrant and you are in remand for 07 days.

11. Based on guideline cases, I take the following facts in to consideration whilst arriving at a suitable starting point on your sentence.

• No weapons used.
• Offence committed at night time.
• Force used is minimal.
• Value of items stolen is minute.
• Absence of evidence on planning.
  

With due regard to above facts, I take a starting point at the lower end of the tariff band and as such select 04 years imprisonment as the starting point.

12. I do not find any aggravating factors in this offence.

13. Your personal circumstances do not deserve any discount from sentence. However in view of the expressed remorse and cooperation with the police and including the 07 days you have spent in remand for this offence I reduce your sentence by 12 months bringing your sentence down to 03 years.

14. As you are considered to be a first offender I shall further discount your sentence by 03 months to reflect previous good character. Now your sentence is 33 months.

15. Upon your early plea of guilt I avail to you a 1/3rd reduction from your current sentence which is another discount of 11 months.

16. As such your final sentence for this offence of Robbery shall be 22 months of imprisonment.

17. I shall now consider the question of suspension of sentence pursuant to section 26 of the Sentencing and Penalties Decree 2009 as your final sentence is below 02 years imprisonment.

18. You are convicted and sentenced on a serious offences which necessarily attracts deterrent punishment, "signifying that the court and the community denounce the commission of such offences"

However you are a young offender at your extreme youth. Thus it is the view of this court that you should be availed of some redress from severe punishment.

19. However the serious nature and circumstances of this offending need to be balanced with public interest, interest of the Accused person and the interest of justice at large. In the case of State v Nadolo [2012] FJHC 1444; HAC143.10 (23 November 2012) Hon. Justice PriyanthaNawana J has stated thus;

"Section 4 of the Decree on 'Sentencing Guidelines', has been founded on the jurisprudential principle of 'balancing competing interests' of the offender, the victim and the society at large. (State v Tilalevu [2010] FJHC 258 HAC 81 of 2010; 20.07.2010)

It is, therefore, of paramount importance for any sentence to reflect court's bounden duty of protecting the community and its unhesitant approach of denouncing the commission of the offence within the prescribed parameters under the law. This can be manifested only by deterring the offenders and others who tempt to commit crime."

20. Hon. Justice PriyanthaNawana J in State v Nadolo [2012] FJHC 1444; HAC143.10 (23 November 2012) (supra) further went on to say;

"In the circumstances, I am not inclined to suspend the sentences ordered in respect of the two charges totally. Instead, I am of the view that it would be expedient to award a partial suspension, as provided for under Section 26(1) of the Sentencing Decree, after taking into account that an opportunity for rehabilitation in the mainstream should be afforded to the accused who is in his youth."

21. I am therefore of the view that a part suspension of your sentence would lead to serve both ends of justice and punish you "to an extent and in a manner which is just in all the circumstances".

22. Thus you are hereby explained of the purpose and effect of a suspended sentence and further the consequences that would follow if you commit another offence during the period of suspension.

23. Accordingly, I now suspend 12 months out of your sentence for a period of 03 years. You shall spend in custody a term of 10 months.

24. In the final outcome your sentence in effect for this offence is 12 months imprisonment term suspended for 03 years and 10 months imprisonment term to spend in custody.

25. You have 28 days to Appeal.

Kashyapa Wickramasekara,
Resident Magistrate
27th March 2015.