State v Daivalu [2023] FJMC 30; Criminal Case 353 of 2023 (12 December 2023)

IN THE MAGISTRATE’S COURT IN SIGATOKA

CRIMINAL JURISDICTION

Criminal Case No. 353/2023

The State –v- Ratu Apenisa Daivalu

For the State: PC Kamea

For the Accused: In person

SENTENCE

Ratu Apenisa Daivalu you have been convicted as charged with the following: -

FIRST COUNT

Statement of Offence (a)

ROBBERY contrary to section 310(1)(a)(i) of the Crimes Act No. 44 of 2009

Particulars of offence (b)

RATU APENISA DAIVALU on the 29^th day of October 2023 at Sigatoka in the Western Division, robbed ALUMITA NONA of Samsung A02 mobile phone valued at $300, 1 x Nike brand bag valued at $50 and assorted clothes valued at $150 all to the total value of $500 and immediately before the time of such robbery did use personal violence on the said ALUMITA NONA.

SECOND COUNT

Statement of Offence (a)

BREACH OF SUSPENDED SENTENCE contrary to section 28(1)(2) and 26 of the Sentencing and Penalties Act of 2009

Particulars of offence (b)

RATU APENISA DAIVALU on the 29^th day of October 2023 at Sigatoka in the Western Division, breached the suspended sentence order of 6 months imprisonment which was suspended for 2 years vide Sigatoka Court Criminal File number 437/22 given to him on the 16^th day of May 2023 by committing another offence namely Robbery.

On the said date and place at about 3.45pm you ran from behind the Complainant, Alumita Nona 30 years USP Student and grabbed her phone and Nike brand bag which contained her clothes and ran away. In the process, the Complainant sustained abrasions to her left knee and right big toe.

Later you were arrested, interviewed under caution and charged.

During investigation, it was discovered that you committed this offence while a suspended sentence order of 6 months imprisonment which was suspended for 2 years vide Sigatoka Court Criminal File number 437/22 given to you on the 16^th May 2023, was still in operation.

You have pleaded guilty to the charge of your own free will. As a result, the Court accepts that your plea is unequivocal.

The Summary of the Facts has been outlined to you and you have freely admitted the same therefore you stand guilty as charged.

You have three previous convictions of Burglary, Serious Assault and Theft between 2022 and 2023 where a partial suspended sentence was given to you. You have offered your mitigation as follows:

Mitigating Factors

- You ask for the Court’s forgiveness and you promise not to reoffend.
- You have pleaded guilty at the earliest opportunity.
- You promise not to reoffend.
- You have been in remand for about a month.

Maximum Sentence
The maximum penalty for Robbery under the Crimes Act is 15 years imprisonment.

In the case of Raisokula v State FJHC 148; HAA24.2017 (2 March 2018), his Lordship Justice Perera stated that the summary for tariffs for rover should be:

- Robbery (but with concomitant violence): 8 – 14 years.
- Robbery without violence: 2 – 7 years.

His Lordship goes on to say that :

It is pertinent to note that the term ‘violence’ found in the aforementioned sentencing tariff or the category declared by Madigan J. is not found in the provisions under section 310 of the Crimes Act. In the recent case of Dibi V State [2018] FJHC 86; HAA96.2017 (19 February 2018) Madigan J had expressed an opinion to the effect that such categories that include words that are not reflected in the offence cannot stand in the light of the Supreme Court decision in Vakalalabure v The State [2006] FJSC 8; CAV0003U.2004S (15 June 2006). According to paragraph 15 of the judgment in Dibi (supra) this is what the Supreme Court had said in the aforementioned case which led Madigan J. to reach that conclusion;

“it is a fundamental principle of our criminal law that a person must not be punished except for offences for which he has been convicted.”

The same authority highlighted further differentiated the tariff for robbery with violence and robbery without violence.

The sentencing courts before selecting the said tariff should be cautious to first satisfy that the offending involved violence based on the evidence in the case that would justify applying that tariff where the starting point of the sentence should be at least 8 years.

This Court has considered the facts in this matter and is satisfied that violence was used during the robbery as there is a medical report of the Complainant showing injuries. In light of this view, I will adopt the said tariff for robbery with violence.

In this case you have pleaded guilty. Your actions on the day in question were unexpected and no doubt was a terrifying experience for the Complainant in this case.

Your action in this case deserves a sentence of imprisonment.

In sentencing you I adopt a starting point at 8 years of imprisonment and I deduct 3 years for your mitigating factors. Your sentence now stands at 5 years. I deduct 2 years for your guilty plea, leaving you with a balance of 3 years imprisonment. I further deduct 2 months for time spent in remand, leaving you with a balance of 2 years and 10 months imprisonment.

This Court sentenced you to a partial imprisonment in the past year and it appears that you did not learn a lesson by proving that you had rehabilitated. Therefore, I do not find any special circumstance to suspend your sentence.

In sentencing you for Breach of Suspended Sentence, I have considered Section 28 (4) and (5) of the Sentencing and Penalties Act 2009. The said section is as follows:

“(4) If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a fine not exceeding 100 penalty units and in addition the court must restore the sentence or part sentence held in suspense and order the offender to serve it, but of the court considers that exceptional circumstances exist that make this unjust, the court may instead—

(a) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or

(b) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the after of the order under this sub-section; or

(c) make no order with respect to the suspended sentence.

(5) Any order for an offender to serve a term of imprisonment under sub-section (4) must be served —

(a) immediately; and

(b) unless the court orders otherwise, consecutively on any other term of imprisonment previously imposed on the offender by that court or any other court.”

In this case, you committed Robbery within 5 months of the suspended sentence that was given in May this year. Usually, suspended sentences are imposed as a rehabilitative way of encouraging an offender to do good. You did the exact opposite when you committed this offence. In the circumstances, I choose to restore the 6 months imprisonment term issued in Sigatoka Court Case Number 437/22.

Ratu Apenisa Daivalu, this is your Sentence:

1. For the offence of Robbery, I sentence you to 2 years and 10 months imprisonment, be served immediately.
2. For the offence of Breach of Suspended Sentence, I sentence you to 6 months imprisonment, be served immediately.
3. I further order that both sentences be served concurrently.

The sentence will now be explained to you in the Itaukei language.

28 days to appeal.

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Joseph Daurewa
Resident Magistrate
12^th December 2023