State v Salabale [2016] FJMC 130; Criminal Case 679.2015 (1 September 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 679/2015

STATE

V

ASESELA SALABALE

Counsel : Ms. S.Lodhia for the State

Ms. R.Nabainivalu (LAC) for the Accused

Date of Sentence: 01^st of September 2016

SENTENCE

1. ASESELA SALABALE, you were charged with one count of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Decree No. 44 of 2009.
2. You pleaded guilty on 27^th of August 2016 and also admitted the following summary of facts presented by the State on 30^th of August 2016:

The complainant in this matter is Kailash Kumar Patel, taxi driver of Toorak Road

The accused is Asesela Salabale of Tamavua-i-wai village

The accused has been charged with 1 count of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree 2009.

On 27^th March 2015, at about 10:15pm, the complainant was driving his taxi registration no: LT 7217 along Victoria parade. He was then stopped by 4 itaukei males. They all got into the taxi. One of them sat on the front seat while 3 others sat at the back. The complaint smelt liquor from the 4 males. The one who sat in front asked the complainant to drive to Delainavesi. The complainant then drove along the Queens Road and when they reached the roundabout at Reservoir Road, the itaukei male that sat in front asked the complainant to take them to the cemetery but the complainant told him that the road does not lead to the cemetery. He then continued to take them to Delainavesi. Before they reached the Delainavesi bridge, the men told the complainant to turn to the gravel road on the right. The complainant then drove along the gravel road and this is when the itaukei male who sat in front pulled the handbrake, blocked the complainant’s mouth with his hands and punched his left cheek. The male who sat behind the complainant pulled him backwards as the other two got off the taxi. One of them pulled the complainant’s wallet from his trousers while the other one stood. In total, they stole $17 worth of coins and there was $25 worth of cash in the complainant’s wallet. They all then walked away while the complainant drove to Delainavesi police post. The officers then accompanied the complainant to the scene where he was robbed.

On 28^th March 2015, the complainant was medically examined and the medical report reveals that there was a laceration and swelling noted on his forehead, soft tissue swelling noted over his left mandible and soft tissue injury noted over the nachal area. A copy of the medical report is attached herewith as (A1).

The police investigations led to the accused being arrested and interviewed under caution on 30^th March 2015 at Samabula Police Station where he made full confessions. At question and answer 46, the accused explains that he was the one who held the complainant from behind in the taxi while the others took out the complainant’s wallet from his pocket. A copy of the caution interview is attached herewith as (A2).

The stolen cash worth $42 in total was not recovered in this matter.

3. I am satisfied that your plea was voluntarily and unequivocal .Accordingly I convict you for this charge.

The Law and Tariff

4. Maximum penalty for the offence of Aggravated Robbery under the Crimes Decree is 20 years imprisonment.
5. In Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) his Lordship Chief Justice Anthony Gates said:

“We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them.”

6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

7. The offence you committed is prevalent in the society at the moment instilling fear to the public. You also played a major part in the offending by holding the victim from behind in the taxi whilst the others were stealing the money.
8. Hence considering the gravity of offending and your culpability, in my view the starting point need to be selected from middle end of the tariff.
9. Accordingly I select 12 years imprisonment as the starting point for this sentence.

Aggravating Factors

10. I consider following as aggravating factors in this case :
    1. This was committed against a public service transport provider ;
    2. The complainant got injured from the assaults as confirmed from the medical report.
11. For these aggravating factors I add 04 years to reach 16 years imprisonment.

Mitigating Factors

12. The learned defence counsel from the Legal Aid submitted following mitigating factors in her mitigation submission :
    1. Young offender(19 years old) ;
    2. First offender ;
    100. Co-operated with the police.
    4. Support his mother and family.
13. For these mitigating factors I deduct 03 years to reach 13 years imprisonment.

Early Guilty Plea

14. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount.
15. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case”.

16. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
17. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in Posate Rainima v The State , Criminal Appeal No AAU 0022 of 2012 where the Lordship said :

“[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.

[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.

[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.

(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.

(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatorycaution interview has been admitted into evidence is not deserving of any discount whatsoever.”

18. Even though this case was pending for some time you pleaded guilty at the earliest opportunity after getting the legal aid for the amended charge. For that I am going to give full credit to you and deduct 1/3 to reach 104 months imprisonment.
19. Section 24 of the Sentencing and Penalties Decree stipulates that the remand period has to be considered as the period of imprisonment an accused already served.
20. In this case perusing the court record shows that you are in remand for nearly 07 months (31/03/2015- 15/06/2015 and from 11/04/2016 up to now) I deduct that period to reach 08 years imprisonment.
21. Taxi drivers are providing an essential service to the public and especially in the night it may be the only transport available to the people in this country. Hence their safety needs to be guaranteed to provide continuance service to the public. The people who commit violence against public service transport providers will be dealt severally by this court to denounce their behavior and to prevent these incidents from happening in future.
22. ASESELA SALABALE, you are sentenced to 08 years imprisonment for the offence of Aggravated Robbery contrary to section 311(1) of the Crimes Decree with a non- parole period of 06 years .
23. Since this court is exercising the extended jurisdiction of the High Court, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

Shageeth Somaratne

Resident Magistrate