State v Gage [2017] FJMC 19; Criminal Case 1973.2016 (13 February 2017)

N THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1973/2016

STATE

V

SAMUELA GAGE

TEVITA BOSE

For the Prosecution : Cpl Shaw

Both accused: In persons

Date of Sentence : 13^thof February 2017

SENTENCE

1. SAMUELA GAGE, TEVITA BOSE you both were charged with one count of Abduction contrary to section 281 of the Crimes Decree.
2. In addition SAMUELA GAGE, you were charged with one count of Theft of Motor Vehicle contrary to section 291 (1) of the Crimes Decree, one count of Dangerous Driving contrary to Section 98(1) and 114 of the Land Transport Act , one count of Driving motor vehicle without a Driving license contrary to section 98(1) and 114 of the Land Transport act and one count of Driving motor vehicle in contravention of Third party policy risk contrary to section 4(1) of the Motor Vehicle (Third party policy Insurance )Act.
3. You both admitted the following summary of facts :

Arrested and charged one Samuel Gage (Accused 1), 21 years, Car Wash Attendant of Balabala Crescent, New Town, for one count of Theft of Motor Vehicle: - contrary to Section 291(1) of the Crimes Decree No. 44 of 2009 1 x count of Abduction: contrary to Section 282(a) of the Crimes Decree No. 44 of 2009, 1 x count of Dangerous Driving:- contrary to Section 98(1) and 114 of the Land Transport Act No. 35 of 1998, 1 x count of Driving Motor Vehicle Without A Driving LIcence:- contrary to Section 56(3)(a)(6) of the Land Transport Act No. 35 of 1998 and 1 x count of Driving Motor Vehicle in Contravention of the Third Party Policy Risk:- contrary to Section 4(1)(2), 29 years, cleaner of Balabala Crescent, New Town.

• (Accused 1) on the 20th day of November 2016 at about 0200hrs, drove away with vehicle registration number HZ803 without the knowledge of the owner namely AkeaiBokadi (A-2), 56 years, Retired Military Officer at Nadonumai Village, Lami, the vehicle was parked at his residence and (Accused 1) drove the said vehicle towards Suva City.

• When (Accused 1) reached Suva City he picked (Accused 2) 29 years, cleaner of Balabala Crescent, Newtown. Thomas Victor Koi (A-3), 19 years, Car Wash Attendant of Balabala Crescent, Newtown and InokeRawaigaga (A-4), 19 years, Car Wash Attendant of Balabala Crescent, Newtown, they then asked (Accused 1) to take them home.

• (Accused 2) sat in the front passenger seat whereby (A-3) sat on the back lest passenger seat and (A-4) sat in the right back passenger seat and they went along Victoria Parade towards Nasese area.

• When they came towards Albert Park opposite Holiday Inn, (Accused 2) asked (Accused 1) to stop the vehicle.

• (Accused 1) went out of the vehicle and forcefully grabbed (A-1) Fanny Louvel, 27 years, of Coulture Department of the French Embasssy who was walking to her residence after clubbing at Traps Nightclub.

• (PW-1) without her will forced by (Accused 2) into the back left passenger seat where (A-3) was sitting.

• (A-3) did not know anything since he was drunk and falling off to sleep where he was sitting (passenger’s seat).

• (A-1) was grabbed on her waist and was forced into the vehicle registration number HZ803 her body was still half way inside the vehicle and she was struggling and shouting at the top of her voice, her legs was still outside the vehicle.

• The vehicle registration number HZ 803 reversed and drove towards the Constitution Road between Albert Park and the Government Building.

• Sgt. 3989 Arthur Davis (A-5), police officer and his team were on patrol on that area and heard (A-1) shouting and went after the said vehicle since (A-1) was calling out for help, they went along the Constitution Road and the vehicle veered off the road and went into the compound at the FHL Building Compound at 41 Gladstone Road.

• The suspect were managed to be arrested and (A-1) rescued well and brought down to Totogo Police Station.

• The victim (PW-1) was taken for medical examination and report as per medical report:-

 Laceration

 Abrasion on the elbow.

• The vehicle registration number HZ803 was badly damaged due to the impact of the accident, (Accused 1) do not possess any Driving Licence.

• (Accused 1) was cautioned interviewed by D/Cpl. 3346 Viliame Loki (A-12) and he admitted in committing the said offences and was later charged by DC 3090 AkuilaDebalevu (A-14).

4. I am satisfied that plea were made voluntarily and unequivocal. Accordingly I convict you both for this charge.
5. The maximum penalty for Abduction is 07 years imprisonment.
6. In Sasau v State [2012] FJHC 1301; HAC 111.2009 his Lordship Justice Madigan had held:

“As the maximum penalty for this offence is seven years both under the Penal Code and the Crimes Decree 2009, an appropriate tariff for the offence would be between 18 months and four years, depending on the violence, length of detention, use of weapons, etc."

7. Maximum penalty for Theft is 10 years imprisonment.
8. The tariff was outlined in the case of Ratusili v State [2012] FJHC 1249; HAA011.2012 (1 August 2012) where Justice Madigan said :

(i) for a first offence of simple theft the sentencing range should be between 2 and 9 months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) Theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

9. For Dangerous Driving the prescribed penalty is $1000/12 months imprisonment and disqualification for 6 months. For driving motor vehicle without the driving license the penalty is $200/30 day imprisonment and finally for driving motor vehicle in contravention of Third party policy risk the penalty is $400/ 12 months imprisonment and disqualification up to 12 months.
10. 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 in the following manner:

"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.

11. Both accused have charged with one count of Abduction which I select as the base sentence in this case and considering the objective seriousness of the offence, select 26 months as the starting point.
12. The victim in this offence is a foreign national and was working as a staff to the French Embassy. This was committed around 2am in the morning. The victim received injuries as per the medical report. I consider these as aggravating factors and add 14 months to reach 40 months imprisonment.
13. Both accused have filed written mitigation submitting the following grounds:

SAMUELA GAGE

1. 21 years old;
2. First offender;

100. Cooperated with the police.

TEVITA BOSE

1. 29 years old;
2. Sole bread winner of the family;

100. Cooperated with the police;

4. Clean record from 2005.

14. Even though the 2^nd accused was arguing that his convictions were spent and he has to be considered as a first offender, his previous convictions were showing a different picture. Even confronted with this the accused was insisting about his clean record and the prosecution has to conduct further investigation to confirm about his convictions. Only later the 2^nd accused admitted that he was not telling truth to the court about his convictions. Hence I give little weight to his mitigation submission.
15. For these mitigating factors I deduct 10 months from the 1^st accused to reach 30 months and 04 months from the 2^nd accused to reach 36 months imprisonment. I have given more credit to the 1^st accused considering his young age as well as past good behavior.
16. You both have pleaded guilty early and for that I deduct 1/3 to reach 20 months for the 1^st accused and 24 months for the 2^nd accused.
17. You both are in remand for nearly 04 months and pursuant to section 24 of the Sentencing and Penalties Decree I deduct that period to reach 16 months imprisonment for the 1^st accused and 20 months imprisonment for the 2^nd accused.
18. In Laisiasa Koroivuki v the State(supra) the court further stated that the sentencing court has to give reason if the final sentence falls below or above the accepted tariff. The 1st accused sentence is below the tariff for abduction based on his mitigating factors and early guilty plea. Also the disparity of sentence is based on superior mitigating factors applicable to the 1^st accused.
19. Considering all the circumstances I sentenced the 1^staccused in following manner for his other offences to be served concurrently.

Theft - 04 months imprisonment

Dangerous Driving- 03 months imprisonment

Driving motor vehicle without a Driving license-30 days’ imprisonment

Driving motor vehicle in contravention of Third party policy risk- 03 months imprisonment.

20. Now I have to consider whether to suspend these sentences as requested by both accused.
21. The predators that target the women in the street need to be dealt with severe sentences to denounce their behaviors as well as to deter these from happening in future. Also this court wants to send the clear message to the society that the violence against the females in the street will not be tolerated. Hence I find a custodial sentence is warranted for both accused to fulfill these objectives.
22. SAMUELA GAGE, I sentenced you to 16 months imprisonment for this charge. TEVITA BOSE, you will be sentenced to 20 months imprisonment.
23. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate