State v Tuiloma [2017] FJMC 24; Criminal Case 2106.2016 (17 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 2106/2016

STATE

V

LEBA BALE TUILOMA

For the Prosecution: Ms.D.Kumar (ODPP)
The accused : In person
Date of Sentence: 17^th of February 2017

SENTENCE

1. LEBA BALE TUILOMA, 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 for this charge and also admitted the following summary of facts presented by the State :

The complainant in this matter is Maria Buresea, 23 years, Customer Service Officer of Newtown, Nasinu. The accused person is Leba Bale Tuiloma, 23 years, domestic duties of Raiwaqa, Suva.

On 26 December 2016 at about 4.30am, complainant was outside Vineyard Palace along Victoria Parade, Suva, waiting for a taxi. At that time she was talking to a friend on her black and yellow LG brand mobile phone.

While on the phone, the complainant noticed that she was surrounded by 3 Itaukei women. The accused person was one of the three women. The accused person in the company of two others, with intent to commit theft of the complainant’s property, used force on her by punching her on her forehead and stole her mobile phone. The accused person’s accomplice stole the complainant’s handbag and ran away. The handbag contained the complainant’s walled and $50 cash. The value of the mobile phone was $800. The total value of the complainant property was $840.

The complainant raised alarm about the robbery as the accused person was running away. Through the assistance of some of passer-by’s the accused person was arrested.

A police patrol vehicle arrived and upon being briefed by the complainant, the accused person was questioned by the police about the mobile phone. The accused was found to be sitting on a flower bed beside the road. On being asked to stand up, it was found that the accused was sitting on the complainant’s LG brand mobile phone.

The complainant’s handbag was also recovered by passé-by’s but its contents were not recovered. She positively identified both items as her property.

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 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.

7. Considering the nature of offending and your culpability, I select 12 years imprisonment as the starting point for this sentence.
8. In Wise v State(supra) the court highlighted number of factors that can be considered as aggravating factors in this kind of offence and this includes the victims receiving injuries which need hospital treatment.
9. In this case the complainant was injured from the assault as shown through the medical report and had to get treatment from CWM hospital. This I consider as the aggravating factor in this case and add 03 years to reach 15 years imprisonment.
10. I consider following as mitigating factors in this case:
    1. 23 years old;
    2. First offender;
    3. Cooperated with the police;
    4. Some stole items recovered;
    5. Seeking forgiveness.
11. For all these, I deduct 03 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 (Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007).
13. Further 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.
14. In this case giving full credit to your guilty plea, I deduct 1/3 to reach 08 years imprisonment.
15. 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.
16. You were remanded for this case for nearly 01 month 20 days and for that I deduct 02 months to reach 07 years 10 months imprisonment.
17. In Laisiasa Koroivuki v the State(supra) it was further held that if the final sentence falls either below or higher than the tariff the sentencing court has to give reasons for that. In this case even though the final sentence is below the tariff, I have come to this based on the lack of aggravating factors, valid mitigating factors and early guilty plea of the accused.
18. Even though you are a young and first offender, the court has to give priority to the safety of the public in this country. They need to have freedom to move with their daily activates without being subjected to this kind of violent offending. The criminals who commit these kinds of offences will be dealt with severe sentences to denounce their behaviors and to prevent these from happening in future.
19. Hence I sentenced to 07 years 10 months imprisonment for this charge 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