State v Buka [2020] FJMC 42; Criminal Case 350 of 2018 (5 February 2020)

IN THE MAGISTRATES’ COURT OF FIJI
AT LAUTOKA
EXTENDED CRIMINAL JURISDICTION

High Court Criminal Case No. 92 of 2018
Criminal Case No. 350 of 2018

STATE

v.

1. SAMU BUKA
2. LIVANAI VOITIA
   

For the State: Sergeant Theodore Lew
For the Defendants: Mr. Varinava, of counsel, of the Legal Aid Commission

SENTENCE

1. On 6 December 2019, you each entered a plea of guilty to the counts that applied to you:
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311 (1) (a) of the CRIMES ACT 2009.

Particulars of Offence

SAMU BUKA and LIVINAI VOITIA on the 7^th day of April, 2018 at Lautoka in the Western Division, robbed DALJEET SINGH of $440.00 cash, 1 x Samsung J5 Phone valued at $500.00 and a Vehicle Registration Number LT 5608 valued at $6, 000.00 and immediately before such robbery used personal violence on the said DALJEET SINGH.

SECOND COUNT

Statement of Offence

DRIVING MOTOR VEHICLE WITHOUT BEING THE HOLDER OF A DRIVING LICENCE: contrary to section 56 (3)(a) of the LAND TRANSPORT ACT 1998.

Particulars of Offence

SAMU BUKA on the 7^th day of April, 2018 at Lautoka in the Western Division, drove a motor vehicle registration number LT 5608 on Tavakubu Back Road, without being a holder of a valid driving licence in respect of the said vehicle.

2. You each admitted to acting together to rob DALJEET SINGH but you each said that you had only taken his J5 mobile phone, his vehicle and approximately $40.00 in loose coins and a $5.00 note from him. You each admitted the Summary of Facts read out by the State and interpreted for your benefit in open Court except that you disputed the amount that the State asserted you had taken from the complainant.
   
3. The Summary of Facts indicate that on 7 April 2018 at about 7.30pm near the Lautoka Hospital, you SAMU BUKA, then 25 years old and you LIVINAI VOITIA then 32 years old had stopped taxi registration number LT 5608 driven by DALJEET SINGH. You asked him to take you to Tavakubu Back Road. On the way, you stopped DALJEET SINGH, forcefully removed him from the taxi and then robbed him of his J5 Samsung Mobile phone, some money and drove off with his taxi. I take the facts from the particulars of Count 2 as being the facts that apply to you SAMU BUKA. You do not dispute driving that vehicle on that day. You do not dispute not having had a valid driving licence at the time.
   
4. What was disputed was the amount taken from DALJEET SINGH. The Prosecution alleged that $440.00 in cash was taken from him. You, SAMU BUKA and you, LIVANAI VOITIA both disputed this and claimed that approximately $40.00 had been taken from him. In order to resolve this factual dispute, I then – with the agreement of all parties, adjourned to conduct what has come to be known as a “Newton Hearing”: see R v. Newton [1983] 77 Cr. App. R 13 cited with approval in Director of Public Prosecutions v. Dowdall and Dowdall [2018] IECA 122.
   
5. In R v. Newton, supra, the English Court of Appeal established three principle ways in which a sentencing judge might approach a conflict in the facts:
   

“There are three ways in which a judge in these circumstances can approach his difficult task of sentencing. It is in certain circumstances possible to obtain the answer to the problem from a jury.

The second method which could be adopted by the judge in these circumstances is himself to hear evidence on one side and another, and come to his own conclusion acting so to speak as his own jury on the issue which is the root of the problem.

The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to his conclusion. But if he does that then, as (the trial judge) himself said in a passage to which reference will be made in moment, where there is a substantial conflict between the two sides, he must come down on the side of the defendant. In other words, where there has been a substantial conflict, the version of the defendant must so far as possible be accepted.”

6. It is the second method which has come to be known as the “Newton Hearing.”

Ultimately, as was said in R v. Cairns [2013] EWCA Crim 467:

“The admission comprised within the guilty plea is to the offence and not necessarily to all the facts or inferences for which the prosecution contends.”

7. The same point was made another way in R v. Gardner [1983] 2 SCR 368 at 414,
   

“A guilty plea, after all, is merely an admission of the essential legal ingredients of the offence.”

8. The decision of The Secretary for Justice v. Chan Yiu Tung, Anthony [2018] HKCFI 119; [2018] 1 HKLRD 835; [2018] 1 HKC 434; HCMA 463/2016 (23 January 2018) is perhaps instructive for four reasons. First, it highlights the fact that the concept of the Newton Hearing has to be conducted within the statutory framework that applies in the common law country in which the Newton Hearing is held and secondly, “[s]o long as there is a material discrepancy between the prosecution and the defence on the facts for sentencing which could have a significant effect on the sentence, the court has to decide whether to hold a Newton Hearing.”
   
9. More, the decision to hold a Newton Hearing is within the discretion of a Magistrate and it is a discretion which must be exercised judiciously: see [56]. And finally,
   

“a defendant must be sentenced on the “true basis” of the case. The Court of Appeal in HKSAR v Cheung Cho Fat[7] said, referring to R v Beswick[8],that “It is axiomatic that whenever a court is to sentence an offender it should do so on a basis, which so far as it is relevant, is true.”

10. In Lesu v. State [2013] FJCA 65; AAU0058.2011 (3 July 2013), the Court of Appeal per Goundar JA. sitting as a single judge of appeal held:
    

“6] Section 244 of the Criminal Procedure Decree (previously section 306 of the Criminal Procedure Code) provides:

Before passing sentence the court may receive such evidence as it thinks fit, in order to inform itself as to the appropriate sentence to be passed in accordance with the sentencing guidelines and sentencing options provided for in the Sentencing and Penalties Decree 2009.

[7] This provision conforms to the common law on the hearing of disputed facts that would affect sentence. In R v Tolera [2001] UKHL 53; (1999) 1 Cr. App. R. 29, Lord Bingham C.J said that where the defendant disputed some part of the prosecution facts it was for the defendant to clearly state the matters in dispute and the grounds for such dispute. If the prosecution did not accept the defence version and if the discrepancy was significant in that the level of sentence depended on which version the court accepted then the court could hold a Newton hearing to resolve the issue.

[8] In R v Newton 77 Cr. App. R. 13, Lord Lane C.J said that where there was a dispute about the facts which would affect sentence, the judge could either accept the defence version, or hear the evidence and come to his own conclusion. Defence counsel does not need to agree to a Newton hearing (R v Smith (P.A.) 8 Cr. App. R(s) 169) and where such a hearing is held evidence must be led in the ordinary way by counsel. The judge must direct himself or herself on the ordinary standard of proof before accepting any version of the facts. Any appeal from such a finding will only succeed in clear cases which would be rare where there have been findings of credibility, especially on the basis of the defendant's evidence (R v Nabil Ahmed 6 Cr. App. R(s) 391).

[9] A Newton hearing is unnecessary where the dispute is irrelevant to sentence, where the judge and prosecution accept the defence version, where the defence version is "manifestly false" or "wholly implausible" (R v Hawkins 7 Cr. App. R(s) 351) and where the defence put forward matters in mitigation which are outside the knowledge of the prosecution.

[10] The courts in Fiji have accepted the Newton hearing as part of the criminal procedure on disputed fact affecting sentence (see, Kumar v State [2001] FJCA 46; [2001] 1 FLR 207 (24 May 2001) Hefferman v The State [2003] FJHC 163; HAA0051J.2003S (12 December 2003); Naidu v The State [2002] FJHC 137; HAA0012J.2002B (23 July 2002)).”

11. The amount of money taken matters for the purposes of sentencing. I decided to hold a Newton Hearing. On 27 January 2020, I heard from DALJEET SINGH. He testified that he had had $440.00 in notes and coins in his taxi when it was taken by you both. You both testified that the only monies in that taxi had been $40.00 in coins and $5.00 that SAMU had taken from DALJEET SINGH’s pocket.
    
12. SAMU testified that after they had forced DALJEET SINGH from his taxi and had made off with his taxi, his J5 phone, and $45.00 in cash and coins, they drove toward Suva. They did not stop anywhere. They were stopped not far from where the robbery had happened by the Police and as is established by the Summary of Facts and as the Prosecutor confirmed after looking through his evidence file, the Police only found the J5 phone and approximately $40.00 in coins in the car.
    
13. After considering all the evidence before me I delivered an extempore ruling which I set out here:
    

“I am not satisfied beyond reasonable doubt that these defendants stole $440.00. If they had stolen $440.00 surely the Police would have found it in their possession immediately upon their apprehension. After all, the Police found the J5 phone on them and the vehicle. The only other logical possibility is that they had thrown $400.00 in cash out of the window. In that instance, I would have expected facts or evidence from the State of a trail of notes streaming out of that car immediately before apprehension. No, on the material and evidence before me, I find that these two men robbed Daljeet Singh of only $45.00 in coins and cash on that day. That is my finding. That is what I shall sentence them for.”

14. I find you both guilty and I convict you both of AGGRAVATED ROBBERY as charged and I find you SAMU, guilty and I convict you of DRIVING MOTOR VEHICLE WITHOUT BEING THE HOLDER OF A DRIVING LICENCE as charged.
    

Maximum Penalty & Tariffs

15. The maximum penalty for Aggravated Robbery is imprisonment for 20 years.
    
16. In Jekope Usa v. State [2019] FJCA 179; AAU81.2016 (25 September 2019), Calanchini P., sitting as a single Judge of the Court of Appeal made these observations obiter:
    

“[7] For all of the above reasons leave to appeal against conviction is refused. However I am compelled to make a brief comment about the sentence imposed by the Magistrate although not challenged by the appellant’s Counsel.

[8] The learned Magistrate has correctly noted that the maximum penalty for aggravated robbery is 20 years imprisonment. He has then proceeded to apply the sentencing guidelines discussed by the Supreme Court in Wise v. The State [2015] FJSC 7; CAV 4 of 2015, 24 April 2015. The Supreme Court was considering an aggravated robbery case that involved a violent night time home invasion by a group of intruders who had awakened and terrified the occupants. The words in the Supreme Court decision refer to “offences of this nature.”

[9] However the present case was a day time robbery of a taxi driver by two offenders who were unarmed. Although there was one punch in the stomach delivered by the appellant, the learned Magistrate in his judgment at paragraph 2 noted that the complainant stated that he did not receive any injuries and that the stolen wallet contained $80.00.

[10] Under those circumstances the more appropriate sentencing guidelines may be found in the decisions of Goundar J. in State v. Ragici [2012] FJHC 1082; HAC 367 or 368 of 2011 (15 May 2011) and State v. Bola [2018] FJHC 274; HAC73 of 2018 (12 April 2018).”

17. In Ragici, supra and Bola, supra Goundar J. implicitly adopted the tariff established in State v. Tamani [2011] FJHC 725 for an incident of aggravated robbery involving a taxi; which in turn drew from sentences handed down for robberies with violence under the now repealed Penal Code involving taxi drivers.
    
18. In Matagasau v. State – Sentence [2019] FJHC 633; HAC 17.2019 (28 June 2019), Aluthge J. held:
    

“6. The tariff depends on the nature and circumstances of the robbery. The tariffs are as follows:

Street mugging: 10 months to 5 years imprisonment (Raqauqau v. State [2008] FJCA 34; AAU0100.2007 (4 August 2008).

Home invasion: 8 – 16 years imprisonment (Wise v. State [2015] FJSC 7; CAV0004.2015 (24 April 2015).

A spate of robberies: 10 – 16 years imprisonment (Nawalu v. State [2013] FJSC 11; CAV0012.12 (28 August 2013).

Robbery of a taxi driver: 4 – 10 years (State v. Tamani [2011] FJHC 725).”

19. There seems to be no controversy in respect of tariffs for home invasions and a spate of robberies. And the tariff for aggravated robberies involving street muggings or less sophisticated instances of aggravated robbery seems to now be settled: see Tawake v. State [2019] FJCA 182; AAU0013.2017 expressly adopting State v. Josaia Warodo Vatunicoko [2018] 885; HAC210.2018 (21 September 2018); State v Matagasau [2019] FJHC 633; HAC17.2019 (28 June 2019); State v Ketewai [2019] FJHC 468; HAC210.2018 (21 May 2019) but absent any reference to cf. State v. Sokowasa Bulavou [2019] FJHC 877; HAC28.2018 (10 September 2019) and State v. Ronaivalu and Qoriniasi, High Court Criminal Case No. HAC 195 of 2019 (unreported, 17 December 2019).
    
20. I am aware of a countervailing tariff of 8 – 16 years set out for the aggravated robbery of a taxi driver in State v. Naqiolevu –Sentence [2019] FJHC 691; HAC28.2018 (12 July 2019). However, I note that Tamani, supra involved an instance of the aggravated robbery of a taxi driver and the tariff of 4 – 10 years it established drew from authorities involving the robbery with violence of taxi drivers under the now repealed Penal Code. Until the matter is resolved by the Court of Appeal and/or Supreme Court, I consider myself bound by Tamani; Ragici; Bola; and Matanigasau.
    
21. The maximum penalty for driving a motor vehicle without a driving licence for a second offender like you is a fine of $1000.00 and/or 6 months imprisonment and disqualification from driving for 12 months.

Aggravating Factors

22. There are no discernable aggravating factors available on the facts.
    

Mitigating Factors

23. Against those considerations are these factors particular to you.
    

Samu Buka

24. You are 27 years old. You are married with 1 child. You are a canecutter who earns $70.00 a week. You say you are very sorry indeed for what you have done. You state that you engaged in this crime as a result of some very poor decision making on your part. You are remorseful and are willing to rehabilitate yourself if given the opportunity. You are the sole bread winner for your family. You entered an early guilty plea.
    

Livinai Voitia

25. You are 34 years old. You are married with one child, a daughter who is 2 years old. You are a delivery man who earns $140.00 per week. You say you are very sorry for the offence that you committed. You had been separated from your wife and child and you say that you had wanted to use the vehicle to go and see your daughter in Suva who had been very sick at the time. You have since found gainful employment as a delivery man and now look after your daughter who is staying with you here in Lautoka. Your wife and child reside with you. You are their sole breadwinner. You say this will be your last crime. You promise you will not commit another crime again.
    
26. Your wife and daughter were in Court. Your wife indicated that you and she have been married for 3 years. She said you are a good man, a good father and a good provider who has never raised a hand against her or your child. She does not work. You plead with the Court to take into account the fact that you have hire purchase arrangements and you were clearly worried about the deleterious financial impact your incarceration would have on your wife and child.
    
27. All the items taken by you both from DALJEET SINGH were recovered by the Police, the Police Prosecutor tells me.
    

Sentencing

Count 1 – Aggravated Robbery

28. In picking a starting point I look carefully at what you did. According to the State and you both, you forcefully removed DALJEET SINGH from his taxi and made off with his money, phone and vehicle. There is no indication he was battered or that he sustained injury as a result of your actions. I find that at most, you pulled him or pushed him out of that vehicle. If the State’s evidence showed a greater degree of violence then they ought to have particularised that in their facts. They did not. The benefit of that goes to you.
    
29. I pick a starting point of imprisonment for 4 years for you both. I decrease this by 6 months for your personal circumstances LIVINAI and since you have the same family circumstances, SAMU I decrease your sentence by 6 months in fairness to you. Your sentences now stand at imprisonment for 3 years and 6 months. I further decrease your sentences by 6 months for the fact that all the items taken by you were recovered. Your sentences are now imprisonment for 3 years.
    
30. You each pleaded guilty and I am satisfied after listening and observing you both carefully during the sentencing process that these are indications of genuine remorse on your parts. I reduce your sentence by one third for your guilty pleas. Your sentences now stand at 2 years.
    
31. You each spent 1 month and 16 days in remand. I declare this time already served pursuant to section 24 of the Sentencing and Penalties Act 2009. Your sentences are now 1 year 10 months and 14 days. Pursuant to section 26 (2) (b) of the Sentencing and Penalties Act 2009 I am empowered to suspend sentences that are 2 years and under. I pause to consider whether suspended sentences are warranted for each of you here and now.
    
32. You both robbed a taxi driver. As a general principle,
    “the violent robberies of transport providers (be they taxi, bus or van drivers) are not crimes that should result in non-custodial sentences, despite the youth or good prospects of the perpetrators”: Ragici, supra and Bola, supra. Indeed, the “violent and armed robberies of taxi drivers are all too frequent.” In short, taxi drivers and transport providers are a special category of victim that we need to protect.
    
33. More than that, neither of you are first offenders. You, SAMU have 6 previous convictions. Still, this is your first felony. You, LIVINAI have 1 previous conviction. It is for robbery with violence, the now repealed Penal Code equivalent of today’s Aggravated Robbery under the Crimes Act.
    
34. By all accounts, you ought to both go in and stay in for the entire duration of the 1 year 10 months and 14 days. However, we do not merely sentence on the basis of the circumstances of the offending, we sentence too on the circumstances of the offender. And by all accounts, LIVINAI despite your prior bad history you have found an anchor in your wife and your child and it has inspired you to live a better life. You are gainfully employed, you care deeply about your family obligations. You strike me as being a changed man. It happens.
    
35. When I weigh that against the minimal violence used, the lack of injury, and the fact that all the items were recovered, I have no hesitation in finding that the general position notwithstanding, rehabilitation should carry great weight here and now. I adopt what Martin J., a Judge of the Supreme Court of the Northern Territory of Australia said in Bamaga v. Trenerry [1992] NTSC 106; 111 FLR 355 (18 December 1992):
    

“The balancing in each case of the objectives of sentencing is a difficult task. The circumstances of each offence and of the offender vary so much. The extent to which the community needs to be protects against the particular offender or others who may be of a like mind is a matter of degree. The sentencing options cover a considerable range. The proper discretion of a sentencing Court is cast wide.”

36. So here, I have one offender who has clearly made progress in turning his life around; one who is significantly motivated to stay on the “straight and narrow.” Martin J. observed:

“The fact that an offender who has a criminal record has made an effort to “go straight”, ought to carry considerable weight as a mitigating factor, though it may not amount to that which would normally be given in favour of a first offender. If those with a bad record feel that there is to be no benefit from attempts at rehabilitation then why should they bother. It is in the interests of the community that rehabilitation be encouraged.”

37. I agree entirely. I have no hesitation in suspending your sentence LIVINAI. I sentence you to imprisonment for 1 years 10 months and 14 days and I suspend this for a period of 3 years to ensure you are held to account for this crime if you prove yourself untrustworthy and commit another offence in that timeframe. The suspended sentence, I am satisfied, meets the ends of justice. It gives you an opportunity to continue your path to a crime free future while providing a measure of control in case you fall off it.
    
38. I have another offender who has not mitigated so well for himself but who is a co-offender sentenced on the same facts. He too has a young family, he too has entered a plea of guilty early and he too has a job. Although you have committed crimes of a similar nature, this is your first felony offence and you entered a plea of guilty to it at the first available opportunity. I am going to give you one last chance to turn your life around. I suspend your sentence but for a longer period. Your period of suspension is to last for 5 years. You must not commit another crime in the next 5 years. If you do, you may find yourself serving the 1 year 10 month and 14 day term I suspended for your benefit today.
    

Count 2

39. SAMU, in respect of Count 2 I fine you $100.00 to be paid within 3 months in default 7 days imprisonment. You are disqualified from driving for a period of 12 months. Let me be clear: do not drive within the next 12 month and do not drive a motor vehicle without a valid driving licence. If you do, you should expect an immediate custodial term next time.
    

Result

40. In the result, you are both convicted for AGGRAVATED ROBBERY and you SAMU are also convicted of DRIVING A MOTOR VEHICLE WITHOUT A DRIVING LICENCE and you are each sentenced as follows:
    

COUNT 1:

SAMUELA BUKA a.k.a. SAMU BUKA – 1 year 10 months and 14 days suspended for a period of 5 years.

LIVINAI VOITIA – 1 year 10 months and 14 days suspended for a period of 3 years.

COUNT 2:

SAMUELA BUKA a.k.a SAMU BUKA – Fine of $100.00 to be paid in 3 months i/d 7 days imprisonment. You are disqualified from driving for a period of 12 months.

41. Any party dissatisfied with this sentence is at liberty to appeal to the Court of Appeal within 30 days.
    

......................................
Seini K Puamau
RESIDENT MAGISTRATE

Dated at Lautoka this day of 2020.