State v Vunivalu [2016] FJMC 107; Criminal Case 1627.2015 (2 August 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 1627/15

STATE

-v-

NETAVA SISI VUNIVALU

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

COUNT 1

ATTEMPTED ROBBERY- Contrary to Section 44(1) and 310(1)(a)(i) of the Crimes Decree 2009

Particulars of Offence

NETAVA SISI VUNIVALU On 17/9/2015 at Samabula in the central diovision attempted to rob one PushpaLata Prasad of her hand bag valued at $80.00,$130.00 cash,1x Nokia mobile phone valued at $89.00 all to the total value of $299.00 the property of PushpaLata Prasad

COUNT 2

DISORDERLY CONDUCT IN THE POLICE STATION – Contrary to Section 47 of the Police Act,CAP 85

Particulars of Offence

NETAVA SISI VUNIVALU, On 17/9/2015 AT Samabula ,Central Division behaved in disorderly manner in the charge room at the Samabula police station, where members of the public have access.

COUNT 3

DAMAGING PROPERTY: Contrary to Section 369(1) of the Crimes Decree No. 44 of 2009

Particulars of Offence

NETAVA SISI VUNIVALU on the 17th day of September 2015 at Samabula in the Central Division wilfully and unlawfully damaged 1 x Alcatel Telephone valued at $80.00 the property of Fiji Police Force.

2] Summary of facts that you have admitted revealed that;

➢ On the 17th of September 2015 at about 1.13pm along Waimanu Road, Samabula, one PushpaLata Prasad PW1 was standing at the bus stop near to Boron Road when the accused ran across the road and tried to pull the handbag of PW1 whereby she held the handbag tightly and she fell to the footpath and the accused ran away.

➢ Ronald Avinesh Karan PW2, 32 years, taxi driver drove passed and saw the Accused tried to pull the handbag of PW1.

➢ PW2 stopped on the road side and saw the Accused being arrested by an I-Taukei man and taken to Samabula Police Station.

➢ On the 17th of September 2015 at about 1.15pm at Samabula Police Station one Special Inspector LomaniTaleitaki PW3, escorted the Accused into the charge room at Samabula Police Station whereby the Accused started shouting at the top of his voice saying “Au segani via curu I loma” meaning “I don’t want to enter”.

➢ DC 3476 SukuluColati PW4 of Samabula Police Station warned the Accused not to shout whereby he kept on shouting.

➢ On the 17th of September 2015 at about 1.15pm at Samabula Police Station DC 3476 SukuluColati PW4 37 years of Samabula Police Station had warned t6he accused not to shout inside the charge room whereby the Accused got angry and got hold of the Alcatel telephone valued at $80.00 and threw it to the floor and damaged it.

3] Maximum sentence for count one is Imprisonment for 15 years in terms of 44(1) and 310(1)(a)(i) of the Crimes Decree 2009. In respect of the tariff for robbery in Rarawa v State [2015] FJHC 324; HAA05.2015 (30 April 2015) it was held that

“To facilitate sentencing for robbery simpliciter, it would be appropriate to apply two tariffs one for robberies accompanied by violent force should be in the range of 8 to 14 years (in recognition of the lower maximum penalty applied to robbery by the legislature as opposed to the penalty for aggravated robbery). The general tariff for robbery, not accompanied by violence, can then be visited with sentences in the range of two to seven years.”

For count two imprisonment for a period not exceeding three months is the prescribed penalty. Imprisonment for 7 years is the penalty for count three and in in State v Baleinabodua [2012] FJHC 981; HAC145.2010 (21 March 2012) Hon. Justice SalesiTemo held that

"Damaging Property" is a summary offence, and it carries a maximum sentence of 2 years imprisonment. No tariff was supplied to the court by the parties. However, in my view, a suitable tariff would be a sentence between 3 months prison to 12 months prison. Serious cases should attract penalties in the upper range, while less serious cases attract the sentences at the lower end of the scale, including a non-custodial sentence.

4] I shall now proceed to consider your sentence as to be consistent with the tariff, mitigating factors and aggravating factors.

5] I pick 3 years imprisonment as the starting point for the 1^stcount, 3 months imprisonment for the 2^nd count and 6 months imprisonment 3^rd counts each. For the 2^nd and 3^rd counts I do not consider the lower end considering the gravity of the offence. You have damaged the government property and disturbed the due process of law enforcement officers of the police station.

6] As you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third in view of the judgement in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005. Your sentence reaches now 2 years for the 1^st count 2 months for the 2^nd count and 4 months for the 3^rd count.

7] You have no previous convictions as reported by the prosecution. You showed your remorsefulness in mitigation. I shall further consider your sentence in these circumstances.

Sec 15(3) of the Sentencing and Penalties Decree 2009 says that;

As a general principle of sentencing , a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part.

In The State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90 both SereviSereki and KameliUlunikoro were sentenced to one year imprisonment for Shopbreaking and Larceny. Tuivaga C.J., in ordering their immediate release from prison said:

"Young first offenders should not be sent to prison, unless there are compelling reasons to do so."

His Lordship Cited a Malakai Saki v. State, Cr. App. Nos. 28, 29 and 35 of 1993.Where Jesuratnam J, said this-

"The appellant had not used any force or any show of force on anyone. All the articles had been recovered except in one case. Above all the appellant was a young first offender which is an aspect that has been repeatedly emphasised by this Court as a vital factor which magistrates should take into account when sentencing. This is a clear case in which the offender should never have been sent to prison. Probation or binding over should have been explored as alternatives failing which a short suspended sentence could have been given to keep him in check if he was over 18 years of age."

The above mentioned sentencing principle and the precedents would justify a suspended sentence against you. Accordingly your sentence is suspended for 3 years.

If you commit any offence punishable by prison sentence during the next 3years you can be charged under section 28 of the Sentencing and Penalties Decree.

8] In addition $80 fine and 5 days imprisonment in default is imposed for the 3^rd count and in terms of Sec 153(1)(b) Of the Criminal Procedure Decree it should be paid as compensation for the loss to the police.

9] SUMMARY OF THE SENTENCE

1. FOR COUNT ONE; 2 years imprisonment suspended for 3 years
2. FOR COUNT TWO ; 2 months imprisonment suspended for 3 years
3. FOR COUNT THREE; 4 months imprisonment suspended for 3 years and $80 fine and 5 days imprisonment in default.
   

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

2/8/2016