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State v Bulavou - Sentence [2019] FJHC 877; HAC28.2018 (10 September 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 28 of 2018

[CRIMINAL JURISDICTION]


STATE

V

SOKOWASA BULAVOU


Counsel : Ms. M. Choudhary for the State

Mr. K. Prasad for the Accused


Hearing on : 26 - 28 August 2019
Summing up on : 29 August 2019
Judgment on : 30 August 2019
Sentenced on : 10 September 2019


SENTENCE


  1. Sokowasa Bulavou, you stand convicted of the offence of aggravated robbery contrary to section 311 (1) of the Crimes Act 2009, after trial. Your charge reads thus;

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311 (1) (a) of the Crimes Act 2009.

Particulars of Offence

SOKOWASA BULAVOU with others, on the 14th of January, 2018, at Suva, in the Central Division, robbed one ALVEEN HARAK of his 1 x Samsung J2 black in color mobile phone valued at $299.00 and a wallet containing $186.00 in cash, Wespac ATM Card, FNPF Joint Card, FNU ID Card, Voters ID Card, E-Ticketing card, all to the total value of $485.00 and at the time of such robbery used personal violence on the said ALVEEN HARAK.


  1. The maximum sentence for the offence of aggravated robbery contrary to section 311(1) of the Crimes Act is 20 years imprisonment. The tariff for this offence is an imprisonment term between 8 to 16 years. [Wallace Wise v The State, Criminal Appeal No. CAV 0004 of 2015; (24 April 2015)]
  2. Both the prosecutor and the defence counsel have submitted that the tariff for ‘street mugging’ which is 18 months to 05 years should be applied in this case. I have several concerns with regard to applying this particular tariff.
  3. Firstly, the accused in this case was not tried for ‘street mugging’ but for aggravated robbery. In fact the Crimes Act does not include an offence by the term ‘street mugging’. Moreover, this term which in effect creates a special category of offences for the purpose of sentencing, is not defined in any written law. This poses a challenge for a sentencer to identify the offences to which this tariff would apply and may lead to disparity in sentencing. For an example; if the offence of robbery is committed on a pathway would it amount to street mugging? If the offence is committed in a by-road would it amount to street mugging? If the offence is committed in a car park would it amount to street mugging? If the offence is committed along the seawall would it amount to street mugging? If the offence is committed on the driveway in the court premises would it amount to street mugging? What if robbery was committed in a corridor adjoining a particular court?
  4. Secondly, the Supreme Court in Wise (supra) declared only one tariff for the offence of aggravated robbery though the court also acknowledged that an imprisonment term between 10 to 16 years was set in the case of Nawalu v Sti> [2013] FJSC 11; 11; CAV0012.12 (28 August 2013) for ‘violent crimes’. Nawalu (supra) however dwith the tariff for the offence of ‘robbery with violence’ under the Penal Code Code, whereas in Wise (supra) the tariff of 8 to 16 years imprisonment was endorsed specifically for the offence of aggravated robbery under the Crimes Act. Presently however, this tariff endorsed in Nawalu (supra) is often cited as the applicable tariff for a spate of (aggravated) robberies when dealing with the offence of aggravated robbery under the Crimes Act.
  5. The issue is, it is not settled that how many (aggravated) robberies would constitute a spate of (aggravated) robberies (i.e. should two aggravated robberies be considered as a spate of aggravated robberies or should there be at least three or should be five etc.) This issue however is not relevant to the instant case.
  6. The issue relevant to this case is the propriety of not applying the tariff set in Wise (supra) across the board in all aggravated robbery cases by creating an exception in order to permit a lower sentencing range to be applied for a subcategory of offences termed as ‘street mugging’. It may be relevant to note in this regard that the Supreme Court in Wise (supra) decided on 24/04/15 did not acknowledge this tariff introduced in Raqauqau v State [2FJCA 34; 34; AAU0100.2007 by the Court of Appeal on 4 August 2008.
  7. If the above point is viewed from another perspective, it can be noted that this tariff identified for the category of offences termed ‘street mugging’ is applied irrespective of the fact that the offence is committed by one person or more than one person, that is, irrespective of whether the offence committed is robbery or aggravated robbery.
  8. In Raqauqau Basa v The State Criminal Appeal No.AAU0024 of 2005 (24 March 2006), said that the levelsentences in robbery cases should be based on English authoruthorities because the sentence provided in the Penal Code is similar to that in English legislation. The court then referred to the case of Attorney General’s References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) and declared that the applicable tariff for ‘street robbery or mugging’ in Fiji should be 18 months to 05 years.
  9. In Wise (supra) the tariff of 08 to 16 years for the offence of aggravated robbery was not set based on any English authority. Since the Penal Code is now replaced by the Crimes Act 2009 and the provisions relating to the offence of robbery in the Crimes Act is different from that of the Penal Code, the aforesaid reasoning in basing the levels of sentences in robbery on English authorities would no longer be relevant in Fiji.
  10. Nevertheless, having considered all the circumstances, I do find that the starting point of (at least) 08 years that a sentencer should select when applying the tariff of 08 to 16 years established in Wise (supra) may not be appropriate in all cases where the offence of aggravated robbery is committed. That is, in cases where aggravated robbery is committed by stealing items like mobile phones, sunglasses, wallets and hand bags carried by the victim in the streets or in public places where the offence is rather opportunistic and less sophisticated, the starting point to be selected in view of the said tariff appears to be dissonant with the objective seriousness of the offence. In my view an imprisonment term of 05 years would be an appropriate starting point in such cases. Accordingly, I was compelled to come to the conclusion that there should indeed be a different tariff band to cater for the aforesaid category of offences under the offence of aggravated robbery. However, given the concerns outlined above regarding the tariff for ‘street mugging’ which is presently applied, in particular the third point and also taking into account the starting point which I consider to be the appropriate for the said subcategory of offences, I am unable to convince myself that the relevant tariff of 18 months to 05 years is appropriate in the circumstances.
  11. In arriving at the aforementioned starting point of 05 years, I have borne in mind that the said starting point is 3 years less than the lower end of the tariff for robbery which is 02 years and that it is 3 years higher than the lower end of the tariff for aggravated robbery established in Wise (supra) which is 08 years. Accordingly, I have reached the conclusion that the lower end of the tariff that should be applied to the aforementioned subcategory of cases should be 05 years. In order to align this tariff with the tariff pronounced in Wise (supra) for aggravated robbery, since the lower end of the tariff under consideration was decided to be 03 years less than the tariff pronounced in Wise (supra), I consider it appropriate for the higher end to be 13 years which is 03 years less than the higher end of the tariff in Wise (supra).
  12. In view of the tariff of 02 to 07 years imprisonment which is applicable for the offence of robbery, the 18 months to 05 years tariff is appropriate to sentence offenders who are convicted of opportunistic and less sophisticated robberies where the victims walking on the streets or in public places are robbed by a single offender. For a robbery to fall under this category, the victim should not have been approached by entering into a building or the surrounding premises the victim is domiciled in. In my view, to avoid any confusion or inconsistency, this subcategory of offences should be termed as “street or less sophisticated robberies”.
  13. The proposed tariff of 05 years to 13 years imprisonment as constructed above should be applied when sentencing an offender who is convicted of aggravated robbery where the offence of robbery is committed in the same manner as described in the preceding paragraph except for the fact that that the offence is regarded as aggravated (robbery) according to law due to the fact that it is committed with the use of an offensive weapon or by more than one person. It stands to reason that, while the opportunistic robbery of a customer inside a bank, shop or a supermarket could be dealt with by this tariff, a planned robbery inside such building or premises where the target was not an individual customer selected then and there randomly but the business conducted in the relevant building or the premises in general or a special customer who is there for a large financial transaction previously identified and tracked by the offenders, the tariff of 08 to 16 years imprisonment should be applied.
  14. In applying the above tariff of 05 years to 13 years imprisonment, it would be within the discretion of the sentencing court to suspend the sentence pursuant to the provisions of section 26 of the Sentencing and Penalties Act, if the final head sentence reached (due to the mitigating factors) qualifies it to be suspended in view of the said provisions.
  15. This tariff of 05 years to 13 years imprisonment suggested to be applied in sentencing offenders convicted of aggravated robbery but where the nature of the offending falls under the aforementioned subcategory, is higher than the applicable tariff for the offence of robbery pronounced in Rarawa (supra) but lower than the tariff for the offence of aggravated robbery pronounced in Wise (supra). Since the upper end of the tariff is 13 years, not only that this tariff provides a wider flexibility for the court to arrive at a sentence proportionate to the nature of the offending depending on the seriousness, but also justifies the dealing of such cases in the High Court.
  16. Now I turn to the facts of this case. Briefly, around 4.30am on 14/01/18 you along with 3 others tackled the complainant from behind, while the complainant was on his way after having drinks with his friends at a nightclub. While he was falling down, you stole a J2 Samsung mobile phone and his wallet which were in his pockets. You were arrested shortly after this incident and when you were about to be arrested by the police you had the said stolen phone in your possession and you threw it away.
  17. You are 26 years old. You were employed at a fishing company in Walu Bay. You are said to be in a de facto relationship and having a 11-month-old child.
  18. In view of the facts of this case, your case falls under the ‘street or less sophisticated’ category of aggravated robberies. Accordingly, the applicable tariff should be an imprisonment term of 05 years to 13 years for the reasons given in the preceding paragraphs. I would select 05 years imprisonment as the starting point of your sentence.
  19. I would take into account the following as aggravating circumstances in this case, based on which I would add 04 years to your sentence;
    1. the nature of force used on the victim where the victim was tackled and made to fall on the ground;
    2. the fact that the offence was committed by a group of four (two offenders more than the minimum number required to constitute the offence);
    1. the fact that the offence was committed around 4.00am where you and your group targeted a person who is relatively vulnerable as he was returning from a night club after drinks; and
    1. the fact that this type of offending where people returning from nightclubs in the morning are assaulted and robbed is presently reported as being prevalent especially in Suva.
  20. There are no mitigating factors in this case and therefore no deduction is made in that regard. The submission made by your counsel for the purpose of mitigation essentially includes your personal circumstances and it is submitted that you are willing to reform.
  21. You are 26 years old. Therefore, I would not regard you, a young offender. You are not a first offender as you have 05 previous convictions. In 2011 you were convicted of one count of attempted robbery, one count of burglary and two counts of aggravated robbery and in 2012 you were convicted of one count of aggravated robbery. Altogether, there are three convictions for the offence of aggravated robbery, one for burglary and one for attempted robbery. In 2012 you were sentenced for 12 months and thereafter you had a clean record until you committed the offence in this case in 2018. In view of the material available before me, on the face of it, you have managed to refrain yourself from committing offences for about 05 years. For this reason I have decided not to declare you as a habitual offender.
  22. Your counsel also submitted that the fact that the mobile phone was recovered should be considered as a mitigating factor. The relevant phone was recovered after you threw it away when you were about to be arrested and not due to you cooperating with the police. Therefore, I cannot consider that recovery as a mitigating factor.
  23. Accordingly, I sentence you to an imprisonment term of 09 years. I order that you are not eligible to be released on parole until you serve 07 years of your sentence pursuant to the provisions of section 18(1) of the Sentencing and Penalties Act.
  24. The aggravating factors alluded to above which includes the prevalence of the offence warrants you to serve a substantial term to deter you from committing like offences and in order to serve as a deterrent to other persons with similar impulses. I was conscious of the said need and your personal circumstances including your age when I determined the above head sentence and also the non-parole period.
  25. The prosecution cited the case of Timo v State CAV0022.2018 (21 August 2019). In deciding the non-parole term I am bound by the provisions of section 18(1) of the Sentencing and Penalties Act which are not ambiguous. The said section provides that the court must fix a non-parole period when a court sentences an offender to be imprisoned for life or for a term of 2 years or more, unless the court considers that the nature of the offence or the past history of the offender make the fixing of a non-parole period inappropriate.
  26. The said sections 18(1) and 18(2) of the Sentencing and Penalties Act read thus;
    • (1) Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.
    • (2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1).
  27. The above provisions are similar to the provisions of section 11 of the Sentencing Act 1991 of Victoria,ralia. The. The said section reads thus;

Fixing of non-parole period by sentencing court

(1) If a court sentences an offender to be imprisoned in respect of an offence for—

(a) the term of his or her natural life; or

(b) a term of 2 years or more—


the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

  1. The Sentencing Advisory Council of Victoria explains ‘Parole’ in it’s website[1] as follows;

What Is Parole?

Parole is the conditional release of an offender from prison by a parole board.

When imposing a prison sentence, the sentencing court may set a minimum non-parole period. Release on parole is not automatic. After serving this minimum non-parole period, an offender becomes eligible to apply for parole. The parole board hears the application and decides whether or not to grant parole.

If parole is granted, the board sets the conditions (such as supervision) that the parolee (an offender on parole) must abide by. A parolee is still under sentence, and if he or she does not abide by the parole conditions, the board can cancel parole and have the parolee returned to prison.

If the sentencing court imposes a term of imprisonment but does not set a non-parole period, the offender must serve his or her entire sentence in prison.

In Victoria, the Adult Parole Board, the Youth Parole Board, and the Youth Residential Board are responsible for parole assessments and for deciding whether to grant or cancel parole.

[Emphasis added]


  1. In my view the provisions of section 18(2) of the Sentencing and Penalties Act should be read in line with the highlighted portion of the above excerpts. That is, if the sentencing court imposes a term of imprisonment but does not set a non-parole period, the offender must serve his or her entire sentence. The words ‘past history of the offender’ in my view should be understood as an adverse record as opposed to a clean record. Moreover, it is pertinent to note that the two phrases ‘nature of the offence’ and ‘the past history of the offender’ is separated by a comma and the conjunction used is ‘or’. Thus, the fixing of the non-parole period can be declined either due to the nature of the offence or the past history of the offender. The use of the conjunction ‘or’ does not support the contention that the said provisions of section 18(2) referred to above are intended to work in favour of an offender. I have come to that conclusion having analised the following four possible situations a sentencing court would be faced with when the nature of the offence and the past history are assessed in any given case;
    1. Nature of the offence – not serious; Past history of the offender – clean
    2. Nature of the offence – not serious; Past history of the offender – adverse
    1. Nature of the offence – serious; Past history of the offender – clean
    1. Nature of the offence – serious; Past history of the offender – adverse
  2. In my view, a substantially early release of a prisoner would be justified only in the first situation above where the nature of the offence is not serious and the past history of the offender is clean. There is no doubt that the fourth situation would not justify an early release. The issue lies in the second and third situations where either the nature of the offence or the past history of the offender presents a ‘red flag’. If the nature of the offence is very serious, a substantially early release is not justified simply because the offender has a previous clean record. For an example, I am sure that no sentencer would reach the conclusion that an adult offender who is convicted of raping a 05 year old girl who suffered severe vaginal injuries as a result should be allowed to have the benefit of a substantially early release merely because that offender has a clean past history. In all probabilities in such a case the sentencer would decide that it is necessary for the offender to serve the full head sentence.
  3. On the other hand, if the offender is a repeat offender with multiple previous convictions, a substantially early release would not be justified simply because the offence committed is not serious. If the offence is so trivial, a custodial sentence may not be imposed in the first place. However, if the offence is one that warrants a custodial sentence, it is highly unlikely that a sentencer would consider it appropriate to allow that offender to be released early when the offender is of bad character with multiple convictions.
  4. Thus, it is clear that the provisions of section 18(2) should be read as provisions that enable the sentencing court to take a somewhat harsh stand on an offender.
  5. It is pertinent to note that, if non-fixing of a non-parole period is to be construed as enabling an early release of an accused, a court can never make an accused serve the full head sentence imposed by the court and the head sentence thereby would only amount to a mere reference point rather than a definitive term to be served. That is, if a non-parole period is fixed, that should be 06 months less than the head sentence and the offender is therefore entitled to be released after serving a term 06 months less than the head sentence and then if a non-parole term is not fixed (assuming without conceding that the above interpretation that section 18(2) favours the offender is correct), again the offender is entitled to be released substantially early.
  6. In the light of the above, it is manifestly clear that the implication of a sentencing court declining to fix a non-parole term should be that the relevant accused having to serve the remaining (being adjusted in view of the time spent in custody) full term or the full head sentence imposed by the court. Accordingly, in such a situation, in view of the provisions of section 48(1) of the Prisons and Corrections Act, a prisoner cannot be discharged upon serving the effective period as there is an ‘order of court’ against such discharge indicating that he/ she should serve the full head sentence. In this perspective, the necessity to provide reasons when declining to fix a non-parole period in terms of section 18(2) of the Sentencing Penalties Act would make sense.
  7. Section 48 of the Prisons and Corrections Act reads thus;

Discharge of prisoner

  1. (1) Every officer in charge shall be responsible for ensuring that a prisoner is discharged:

(a) at the end of their effective sentence;

(b) in accordance with the order of any court;

(c) into the custody of any person having lawful authority over the prisoner in accordance with a law applying in Fiji; and

(d) in accordance with any decision made by a competent authority authorising a prisoners release on parole.


(2) In the event of any doubt arising as to actual date upon which discharge is due, or the lawful authority of any person into whose custody a prisoner is to be released, the officer in charge shall refer the matter for determination by the Commissioner.


(3) Where a matter has been referred to the Commissioner under subsection (2), and the Commissioner is unable to ascertain the effect of any law applying in that context, the Commissioner may refer the matter for determination by the Attorney General.


  1. Moreover, since the default position according to section 18(1) of the Sentencing and Penalties Act is that the court must fix a non-parole term, fixing of a non-parole period in compliance with the provisions of the said section should not attract the need to provide reasons unless when fixing the said term too close to the head sentence. [Per Gates J in Timo v State CAV0022.2018 (21 August 2019) at 11 and 13]
  2. On the other hand, I am unable to think of any other consideration that may be relevant in determining the non-parole term in addition to the facts and the circumstances that are considered in arriving at the (head) sentence. On a practical perspective, it could be noted that the reasons for arriving at the relevant head sentence would invariably explain the reasons or the thinking process of the sentencer that led to the fixing of the relevant non-parole term as well. I find support for this contention in the following dictum of Goundar J (Calanchini P and Chandra J agreeing) in the case of Turagakece v State [2018] FJCA 142; 142; AAU0085.2014 (4 October 2018);

[20] The only complaint against sentence is that the non-parole period of 13 years is too clo the head sentence of 14 year’s imprisonment. This ihis is no longer considered a valid ground of appeal against sentence. As Justice Keith said in Naitini v State [2016] FJSC 6; CAV0034.2015 (21 April 2016) at [17]:

17. I do not think that the fixing of a non-parole period amounts to punishment. The punishment which Naitini got were the two head sentences. The fixing of the non-parole period did not increase those sentences. It only affected when he might be eligible for release by the operation of the current practice relating to remission prior to the expiry of the head sentences, but that did not make the fixing of the non-parole period punishment. That is what the Supreme Court must have had in mind in Maya when it said that the fixing of the non-parole period "was the court's attempt to ensure that Maya would not be released from prison earlier than the court thought appropriate". In any event, even if the fixing of the non-parole period could be said to amount to punishment, it is not punishment under either the Crimes Decree or the Penal Code, let alone under both of them. It is punishment provided for by the Sentencing and Penalties Decree.

[21] The head sentence of 14 years’ imprisonment is within the tariff for rape of a child by a family member (Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014)). There is very little evidence of genuine remorse on behalf of the appellant apart from his pleas of guilty to the indecent assault charges. The victim was continuously raped over a period of six years (2005-2011). Weapons were used to threaten the victim to submit to sexual intercourse. She was a child and the appellant was an authority figure over her. The breach of trust was gross. The appellant is fortunate that his sentence is 14 years’ imprisonment with a non-parole period of 13 years in a contested case of rape of a child by a family member. For these reasons, I would dismiss the appeal against sentence.


  1. The discussion in paragraph 21 above in Turagakece (supra) makes it abundantly clear that one and the same process can be followed and in fact should be followed when determining both the (head) sentence and the non-parole period for the reason that the same facts are applicable for the determination of both terms. Separate inquiries are neither warranted nor pragmatic.
  2. Further, it is pertinent to note that, relying on the decision of the Supreme Court in the case of Naitini (supra), the Court of Appeal in Turagakece (supra) affirms that the setting of the non-parole term does not amount to a punishment. The main purpose of imposing a sentence is to decide the appropriate head sentence which is the punishment proper. In terms of section 9(1)(a) of the 2013 Constitution, executing a sentence or an order of the court is regarded as an exception to the right to personal liberty. Thus, an offender’s right to liberty is (lawfully) deprived by the court in view of section 9(1)(a) of the Constitution when the head sentence is imposed and it is so deprived throughout that sentence. There is no right for a prisoner to be released on parole. It follows that a refusal to release a prisoner on parole or a decision by the court to fix or not to fix a non-parole period does not constitute a breach of that prisoner’s rights. The provisions pertaining to parole in the Prisons and Corrections Act cannot be construed as having the force or the jurisdiction of restoring the right to personal liberty of a prisoner which is deprived in view of the provisions of section 9(1)(a) of the Constitution during the term of the head sentence imposed by a court of law.
  3. Though good behavior inside the prison during the incarceration may be a relevant consideration, that would not be the sole ground based on which a decision should be made by the Parole Board and the relevant Minister on whether to release a prisoner on parole. Remission on the other hand, is all about good behavior. It is the incentive for a prisoner to stay out of trouble and to be in his/ her best behavior while in prison. Remission determines the ‘effective sentence’[2] as stated in section 48(1)(a) of the Prisons and Corrections Act.
  4. A court sentencing an offender is not required to and in fact cannot consider the provisions relating to remission in the Prisons and Corrections Act. The sentencing of an offender is governed by the Sentencing and Penalties Act and even the term ‘remission’ let alone any provisions for remission is not found in this Act. Therefore, remission does not come within the purview of a sentencing court.
  5. In view of the provisions in section 48(1) of the Prisons and Corrections Act, when the parole board comes into effect, the parole regime will invariably take precedence over the authority to discharge a prisoner solely on remission. Until the parole board is constituted and subject to any impeding court order, a prisoner should be released based on remission in the manner recommended by the Supreme Court in Bogidrau v State [2016] 5; C 5; CAV0031.2015 (21 April 2016) and then recently directed in the case of Timo (supra).
  6. Returning to your seur sentence, it is submitted that you are in custody in view of this matter since 14/01/18. However, you failed to appear in court for a continuous period of time on two occasions and bench warrants were also issued. But the prosecution has not indicated whether or not you escaped from custody during the aforesaid period. Therefore, I will consider you as having been in remand from 14/01/18 until now. Accordingly, you have spent a period of 01 year, 07 months and 27 days in custody. The period you were in custody in relation to this case shall be regarded as a period of imprisonment already served by you in view of the provisions of section 24 of the Sentencing and Penalties Act.
  7. In the result, you are sentenced to an imprisonment term of 09 years with a non-parole period of 07 years. Considering the time spent in custody, the time remaining to be served is as follows;

Head Sentence – 07 years; 04 months; and 03 days

Non-parole period – 05 years; 04 months; and 03 days


  1. Thirty (30) days to appeal to the Court of Appeal.

Vinsent S. Perera
JUDGE


Solicitors;

Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused


[1] https://www.sentencingcouncil.vic.gov.au/about-sentencing/parole
[2] Section 2 of the said Act defines the ‘effective sentence’ as the term of imprisonment that a prisoner is to serve, after taking into account remission as provided by section 28 of the Act.


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