State v Moli [2016] FJMC 220; Criminal Case 531.2016 (4 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 531/2016

STATE

v

PAUL LOIS MOLI

Counsel : Ms. Lavenia Bogitini for the State
Ms. Anisha Singh (LAC) for the accused
Date of Sentence : 4^th of November 2016

SENTENCE

1. PAUL LOIS MOLI, you were charged with some other to one count of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Decree No. 44 of 2009.
2. You pleaded guilty and also admitted the following summary of facts:

“On the 7^th of March 2016 at about 1.30am the complainant was walking back from USP along Grantham Road with friend, Mishal Prasad, 20 years, student of USP of Lot 57 Nairai Road. It was then that he was attacked by the four I-Taukei males at the bus stop near the Salvation Army Church along Grantham Road.

These 4 I-Taukei males grabbed the complaint from the back and he fell onto the ground. The complainant was then punched. They overpowered both the complaint and his friend, Mishal. Whilst the complainant was being assaulted, his Samsung galaxy S4 mobile phone valued at $999.00 fell out of his pocket and was picked up by one of the four I-Taukei males who then ran away. One taxi driver then came to the complainant and his friend’s assistance and took them to the Raiwaqa Police Station where the matter was reported.

The police investigations led to the accused being arrested. He was then interviewed under caution on the 4^th of March 2016 at the Raiwaqa Police Station where he made full confessions. At questions and answers 18, 31 and 32 he confirmed that on the 7^th day of March 2016 at around 1am, two Indian males (the complainant and his friend) walked past the accused and others. When passing the accused and others, the complainant took out his phone from his pocket; they then began assaulting the complainant and his friend. At question and answer 34 the accused states that he had swung his arm at one of the Indian males which hit his shoulder and caused him to fall towards the fence at the Salvation Army. He explains his reasons for doing this at questions and answers 46, 47 and 48, which was to prevent the complainant from going to the police station.

At question and answer 43, 44 and 45, he admits that one of I-Taukei males he was with has obtained the Samsung galaxy S4 mobile phone which was stolen from the complainant”.

3. I am satisfied that your plea was made voluntarily and unequivocal .Accordingly I convict you for this charge.
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. Considering the objective seriousness and your culpability, in my view the starting point need to be selected from middle end of the tariff.
8. Accordingly I select 12 years imprisonment as the starting point for this sentence.
9. The State counsel in her sentencing submission submitted that the aggravating factor in this case is that the accused used force on complainant and his friend. But using force is an element of the offence and need not to be considered as an aggravating factor in this case.
10. But admitted summary of facts shows this was committed at 1.30 am in the morning when the victim was going to the USP with one of his friends. This could have been frightful experience for the victims who were subjected to vicious assaults in the middle of the night. I consider this as an aggravating factor and add 02 years to reach 14 years imprisonment.
11. In her mitigation submission your counsel submitted that you are 21 years old, single, cooperated with the police, first offender and seeking forgiveness from the court. For these mitigating factors I deduct 02 years to reach 12 years imprisonment.
12. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount.
13. 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”.

14. 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.
15. Giving full credit to your guilty plea I deduct 1/3 to reach 08 years imprisonment.
16. 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.
17. In this case you were in remand for nearly 01 month and I deduct that period to reach 07 years 11 months imprisonment.
18. The court has duty to protect the public from these crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. Hence a long custodial sentence is warranted in this case even though you are a first and a young offender.
19. PAUL LOIS MOLI, you are sentenced to 07 years 11 months imprisonment for the offence of Aggravated Robbery contrary to section 311(1) of the Crimes Decree with a non- parole period of 05 years .
20. 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