State v Ratu [2016] FJMC 156; Criminal Case 282.2016 (15 June 2016)

IN THE MAGISTRATE’S COURT
SITTING AT NAUSORI

Criminal Case No. 282 of 2016

State

v

Neumi Ratu (1^st accused)
Masivesi Dakuwaqa (2^nd accused)

Prosecution : DPP

Accused : Both Present – In Person

Sentence

Introduction

The accused persons are charged with Aggravated Robbery, contrary to Section 311 (1)(a) of Crimes Decree Number 44 of 2009. The Particulars of Offence is that:

"Neumi Ratu and Masivesi Dakuwaqa on the 10^th day of April, 2016, at Wainibokasi, Nausori in the Central Division been armed with an offensive robbed a cash register till valued $300.00 containing $480.00 cash, vodaphone and ink recharge cards valued at $300.00 all to the total value of $1080.00 the property of Shanila Maharaj."

The High Court pursuant to Section 4 (2) of the Criminal Procedure Decree 2009 extended the jurisdiction of this Court to try this case. The accused persons waived right to legal counsel and pleaded guilty to the charge. They both admitted the statement of facts. The Court noted that the guilty plea and admission of the facts was unequivocal.

The Law

Section 311 of the Crimes Decree 2009 provides that" (1) 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.

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of aggravated robbery .

(3) is seis section —

"offensive weapon" includes —

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b)

Aggravated Robbery

This Court has noted the law as is stated herein. The maximum sentence for the offence the accused has been charged with and convicted of is 20 years imprisonment.

The Supreme Court in Guston Kean CAV 0015.2010 set the tariff for this offence at between six and fourteen years imprisonment and recent sentences for domestic robberies have been between ten and sixteen years (Rasaqio HAC 155/07; Rokonabete HAC 118/07; Vasuca HAC 41 of 2009L).

In State v Rokonabete [2008[ FJHC 226: HAC 118.2007(15th September 2008), Justice Goundar itemized elements to be considered when assessing the seriousness for any types of robbery:

"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 treat of force that will always be an important aggravating feature. Group offending will aggregate 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 person providing public transport, that will be an aggravating factor. Other aggravating factors may include the volume of items taken and the fact that an offence was committed whist 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 sentence , personal circumstances of offender, first offence of violence, voluntary of property taken, a minor part, and lack of planning involved."

In State V Manoa [2010]FJHC 409:HAC 061.2010 (6th August 2010),the learned judge employed the sentencing tariff for the offence of Robbery with Violence from the old Penal Code when sentencing for the offence of Aggravated Robbery in the new Crimes Decree No: 44 of 2009.

"The maximum penalty for robbery with violence under Penal Code is life imprisonment, while the maximum penalty for aggravated a 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 8-14 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 8-14 years under the old law falls below the maximum sentence of 20 years under 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 continue to treat the offence seriously"
I adopt the tariff for the offences of Aggravated Robbery as set out here-in.

1^st accused – Neumi Ratu

This Court takes a starting point of 10 years after taking into consideration the nature of offending and your role in the crime. Your mitigation is that you are 28 years old, shoe shine boy, married this year, wife is pregnant, seeking forgiveness, willing to repay the victim and promises not to re-offend. This Court has further noted that you are not a first offender as to deserve any other credit. This Court notes that you have been in custody since 15^th April 2016. This period will be taken off. The Prosecution has informed the Court that $300 was recovered from the total of $1080.00.

Starting Point - 10 years

Guilty plea and Mitigation (less) - 2 years

Time in custody (less) - 2 months

Your sentence is 7 years 10 months imprisonment. With a non-parole period of 6 years.

2^nd accused – Masivesi Dakuwaqa

This Court takes a starting point of 9 years after taking into consideration the nature of offending and your role in the crime. Your mitigation is that you are 27 years old, Loading boy, married with a 2 month old child, seeking forgiveness, willing to repay the victim and promises not to re-offend. This Court has further noted that you are a first offender. This Court also notes that you have been in custody since 15^th April 2016. This period will be taken off. The Prosecution has informed the Court that $300 was recovered from the total of $1080.00.

Starting Point - 9 years

Guilty plea and Mitigation (less) - 2 years

Previous good character (less) - 1 year

Time in custody (less) - 2 months

Your sentence is 5 years 10 months imprisonment. With a non-parole period of 4 years.

Summary of Sentence

1^st accused – Neumi Ratu - 7 years 10 months imprisonment. With a non-parole period of 6 years.

2^nd accused – Masivesi Dakuwaqa - 5 years 10 months imprisonment. With a non-parole period of 4 years

Any party aggrieved with this sentence has 30 days (from date of sentence) to appeal this sentence in the Fiji Court of Appeal.

Chaitanya Lakshman
Resident Magistrate

15^th June 2016