State v Radogo [2015] FJMC 63; Criminal Case 218.2014 (18 January 2015)

IN THE MAGISTRATE’S COURT AT NASINU
(Extended criminal jurisdiction of the High Court of Suva)
Criminal Case No: HAC 218 of 2014
M.C Nasinu Criminal Case No.949/14

STATE

-v-

1.CAMA RADOGO
2.IBE KASINIBULI
3.NETANI SUCU

State Counsel Miss. Khan for the DPP
1st and 3rd Accuses Appeared in person
For the 2nd Accused Mr. Luvena ( Legal Aid Commission )

SENTENCE

1. You, CAMA RADOGO; IBE KASINIBULI and NETANI SUCU, are here, to be sentenced on admission of guilt on your own accord for the following offence.

2. Charge reads as follows;

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

CAMA RADOGO, IOBE KASANIBULI and NETANI SUCU on the 13th day of July 2014 at Nasinu in the Central Division threatened and robbed Yee Young Han and stole 1 s glass BH10, 5 x gross BH 20, 7 x packet BH20 valued at $2000.00, 9 x $25.00 Vodafone Recharge Cards valued at $375.00, 3 x $15.00 Vodafone Recharge valued at $45.00, 10 x $10.00 Ink Recharge valued at $100.00, cash of $600.00, 1 x Samsung S9 Mobile Phone all to the total value of $3875.00 the properties of Yee Young Han.

3. I am satisfied with your pleas are unequivocal and that you understand the repercussion of your pleas. I am further satisfied the facts of this case present, included and proved every elements of this offence.

4. According to the facts, (which you have admitted 1. On 13th of July 2014 at 5.40pm at Lot 64 Nadawa Road, Yee Young Han (PW1) 54 years old, Shop keeper was serving a customer inside his shop when Iobe Kasanibuli, Accused 2, 22 years old, Security Officer entered the counter area and placed a kitchen knife on Yee Young Han’s chest and Accused 2 demanded money. Cama Radogo Accused 1, 24 years old, Plumber and Accused 2 dragged Yee Young Han PW1 towards a bedroom and ransacked it but they didn’t find any money. Netani Sucu Accused 3, 27 years old, unemployed was inside the shop and closed the main door from inside of the shop. The robbers took a carton of assorted cigarettes, a box of BH10 valued at $2000.00 which was in Yee Young Han’s room. Then one of the robbers went into another room and took a Samsung S9 brand mobile phone valued at $600 (AUSD). Then the robbers went to the cash register and took out $600.00 cash, Vodafone recharge cards valued at $375.00, Inkk recharge cards valued at $100.00.After stealing the above items all the accused persons then ran away from the shop. The matter was reported to the Police. At about 7.00pm, Litia Tuirara PW2 was watching TV at home. She resides with her family and Cama Radogo Accused 1 and Netani Sucu Accused 3 at Waikete village. Litia Tuirara’s daughter, Akesa 3 years old and 8 months old informed her mother that Netani Sucu Accused 3 brought a lot of cigarettes. PW2 went and check Accused 3’s bag and she saw plenty cigarette gross, recharge cards and a mobile phone. PW2 then informed Taito (Policeman) in the village. Mr. Taito then took the said bag and surrenders it to the Nausori Police Station. A team of Policemen went to Waikete village and arrested Accused 1 and Accused 2. A Police Officer, Timoci Tavunigasau then questioned Accused 1 and mentioned the names of Accused 2 and Accused 3 were part of the robbery at Nadawa. Later Accused 3 was arrested. The following items were inside the said bag namely:5 gross BH20, 7 sealed packets of BH20, 1 gross BH10, 3 packet Pall Mall 20 (green), 1 gross pall mall (red), 1 fruit nut chocolate, 7 x $2.00 coin ($14), 6 x $1.00 coin ($6), 164 x 50 cents ($82), 460 x 20 cents ($92, 663 x 10 cents ($66.30), 568 x 5 cents ($28.40), 9 x $25.00 Vodafone recharge cards, 3 x $15.00 Vodafone recharge cards, 6 x $11.00 Vodafone recharge cards, 13 x %6.00 Vodafone recharge cards, 2 x $20.00 Inkk recharge cards, 3 x $10.00 Inkk recharge cards, 31 x $6.00 Inkk recharge cards, 4 x $3.00 Digicel recharge cards, a Samsung S9 brand mobile phone. All the accused were interviewed under caution.

5. the Accused 1 admitted in his caution interview that he was part of the group that robbed a Chinese shop and a kitchen knife was used. They used a bag to put the stolen items. They intended to rob the Chinese shop. He stated that he committed the offence to support his wife and child. The Accused 2 admitted in his caution interview that he was part of the group that robbed a Chinese Shop. He stated that he received his share of the robbery. The Accused 3 admitted in his caution interview that he was part of the group that robbed a Chinese shop. They were inside the shop and Accused 3 closed the door of the shop for inside. He took the cash and coins, cigarettes, recharge cards and chocolates and put it inside the bag. He identified the bag when it was shown to him. Subsequently the accused persons were charged with one Count of Aggravated Robbery Contrary to Section 311(1)(a) of the Crimes Decree No. 44 of 2009.

6. 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.

7. Tariffs vary the gravity and nature of these offences. In Manoa Baleinakeba 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 Vilikesa Tilalevu and Savenaca Mataki (2010) FJHC 258, HAC081.2010 (20 July 2010)) His Lordship Priyantha Nawana J. held for the offence of agted robbery tariff iiff is 8-14 imprismprisonment following the guidelines of State v Mataiasi Bulivou Susu [2010] FJHC 22.
8. In State v Rokonabete [2008] FJHC 226; HAC 118.2007 (15 September 2008), Judge Goun Goundar made the following remarks in regard to the offence of robbery with violence:-
"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".

9. In your written mitigation the 1 accused has stated that you are 24 years old, married with 1 child. You are a FNU student and attending Trade Certificate Program which you need to complete. You want to spend more time with your young child. You were employed at natabua island resort. You are the sole bread winner of the family .You pleaded guilty to the charges on 1st available opportunity. You said you will not re-offend. You have shown remorse on your act. You sought leniency of this court and non-custodial sentence.

10. The 2nd accused in your written mitigation you have stated that you are 22 years old, single. You were a security officer at Mamas Restaurant. You are the sole bread winner of the 2 member family. .You pleaded guilty to the charges on 1st available opportunity. You stated that you were not in the initial planning of this crime you just followed the 1st and 3rd accuses. You said you will not re-offend. You have shown remorse on your act. You sought leniency of this court and non-custodial sentence. You have fully co-operated with the police. You are willing to pay fine.
11. The 3rd accused stated that you are 25 years old lived with your elderly mother. You are the sole bread winner of the family. You pleaded guilty to the charges on 1st available opportunity. You have shown remorse on your act. You sought leniency of this court and non-custodial sentence.

12. 1st; 2nd and 3rd you are a first offenders and you were remanded for almost 7 months. As per section 24 of sentence and penalties decree this time will be deducted out of your sentence. And as per Vilimone v State [2008] FJHC 12; HAA 131-132.2007 as all accuses pleaded guilty at the first available opportunity their sentence should be reduced by one third and you are entitle for 1/3 deduction out of the sentence.

13. 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. I consider sentencing principles and decided cases in this regard.

14. I now draw my attention to sentencing principles which set out in 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."

15. You have no previous convictions. Therefore I convict 1st, 2nd and 3rd you as charged for 01 count of aggravated robbery.

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

17. In 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 first ofrs."

18. 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 offen160;is concernederned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the publierest or in the interest of the offender himself.
19. Singh v The State [2000[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."

20. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9February 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."

21. In a Rape charge, in State v Mocevakaca [1990] FJHC 87; [199 FLR 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."

22. Therefore, under the sentencing and penalty Decree, the court is vested with various sentencing options. You 1, 2 and 3 accuses deserve a custodial sentence. Therefore considering that all 3 culprits are 1st offenders I pick 9 years imprisonment period which is within the tariff as the starting point after considering the value of stolen goods. For the early plea of guilt i reduced 3 years. Now it's 6 years. Further i reduce the time you spend at remand which is 7 months. Now your sentence is 5 year and 5 months. All 3 accuses as per section 18 of SPD are subject to 3 yeas non-parole period. In auditioned to remanded 7 months' time you will serve 2 years and 5 months in presentment.

23. This court is mindful on the main object of sentencing as deterrent. Prevent the accused by doing another crime. Now your sentence is 5 year and 5 months. All 3 accuses as per section 18 of SPD are subject to 3 yeas non-parole period. In additional to remanded 7 months' time you will serve 2 years and 5 months imprisonment.

24. 28 days to appeal.

On 18th January 2015 at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate