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State v Lesi [2010] FJMC 179; CRC 145.2010 (24 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case Nos: 145 of 2010
146 of 2010

STATE

V

ALIPATE LESI

For Prosecution: Cpl. Lutunagua
Accused: Present in Person

SENTENCE

1. You, ALIPATE LESI are here, today to be sentenced on guilty plea on your own accord for the offence of "Robbery with Violence" Contrary to Section 293(b) of the Penal Code in CF 145 of 2010 and for an offence of 'Larceny from Person' contrary to sec. 271 of the Penal Code in CF 146 of 2010.
   
2. On 01st February 2010, you were produced before this Court for both the above-mentioned cases and after reading and explaining the charges in both languages (English and Fijian), you plead not guilty for both cases. Finally both cases were fixed for hearing on 11th August 2010.
   
3. On 11th August 2010, you informed the Court that you are not ready for the Hearing on the grounds that you don't have disclosures and you are challenging the confession. Court ordered you to pay the cost as all the witnesses were present in the Court. However, you have failed to pay the cost. On 06th December 2010, you informed the Court that you want to change the plea and you plead guilty to both cases.
   
4. You have 11 previous convictions and you are not a stranger to the Court's system. Therefore, I am fully satisfied that your guilty pleas are voluntary.
   
5. According to the brief summary of facts in CF 145 of 2010 (which you have admitted), on 23rd January 2010, you with another youth followed PW-1 who was returning home after buying bread with $46 cash in his shirt pocket. Upon reaching his home PW-1 has opened the gate with his remote control and you pushed PW-1 from behind. PW-1 fell on the ground and your companion was standing near the gate. You have scuffled with PW-1 and managed to grab his cash. With $46 you ran away.
   
6. According to the brief summary of facts in CF 146 of 2010 (which you have admitted), on 13th January 2010 you with another 03 youths managed to grab the handbag of PW-1 who was waiting in the traffic lane due to traffic jam with her son in their car. When you were pulling her hand bag PW-1 had tried to pull it back but as the handle broke you have taken the hand bag with PW-1's mobile phone and cash all to the total value of $199.
   
7. Maximum sentence prescribed for the offence under Sec. 293 (b) is "life imprisonment", which clearly shows the seriousness of such offence. The tariff for the 'Robbery with violence' is 4 to 8 years imprisonment. Maximum sentence for "Larceny from Person" is 14 years and tariff is for 12 months to 24 months.
   

Seriousness of the offence and aggravating factors

8. According to Justice Goundar in The State v. Sakiusa Rokonabete and three others (Criminal Case No. HAC 118 of 2007 Suva, 15th September 2008), aggravating factors, such as, Group offending, planned acts, vulnerable victim, value of the items taken and using of weapons, would invariably invite for a higher starting point in sentencing. In The State v. Timoci Delana [HAC 190 of 2008, 108, 113 and 126 of 2009 on 01st February 2010], Justice Goundar emphasised the above-mentioned facts as aggravating factors.
   
9. According to the Court of Appeal Judgment by Sheppard JA, Gallen JA and Ellis JA in Singh v. State {[2004] FJCA 8; AAU0008.2000S (19th March 2004)}, " 'robbery with violence' either actual or threatened will always give rise to serious consequences". Following factors have considered as guidelines in sentencing.
   
   1. The extent of the loss arising from the criminal action.
      
   2. Vulnerability of the victim and the effect of them and their lives.
      
   3. Subsequent behaviour.
      
   4. Previous criminal record of the offender.
      
   5. Remorse (remorse expressed afterwards how genuine cannot carry as much weight)
      
10. Number of decisions of court have emphasized that it is appropriate to follow English guidelines for the offence of "Robbery with Violence" since both English and Fijian system carries 'life imprisonment' as the maximum penalty. (Basa v. State [2006] Cr. App. AAU. 24/05, 24 March 2006, State v. Vakararawa [2008] FJHC 114; HAC047.2006, 3 June 2008). In R v. Turner 61 Cr. App. R. 67, it was held that "previous good character is not a strong mitigating factor although repeated offenders should be sentenced more heavily than first offenders".
    

Repeat offender

11. In Viliame Cavuilagi v. State, Crim. App. HAA 0031 of 2004 Winter J has made following comments regarding a repeat offender.

"Repetitive, recidivist of offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society's needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law-abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime".

CF 145 of 2010

12. According to Goundar J in State v. Vakararawa [2008] FJHC 114, "the dominant factor in assessing seriousness of any type of robbery is the degree of force used or threatened". In this CF 145 of 2010, you have threat to use violence against an unarmed person who was retuning from a bread-shop.
    
13. This particular crime is a group offending. Your accomplice was on look out for you to fulfil the crime. Considering these facts I set my starting point of sentencing for 04 years.
    
14. In mitigation you said that you are 23 years old and married with one child. You informed that you are still attending school and you asked for a community work order. You are a repeat offender and I see no sign of rehabilitation after your previous convictions. After considering your mitigation and aggravating facts I arrive at 03 years sentence. Even though it is not an early guilty plea I give you 03 months reduction.
    
15. Your sentence for CF 145 of 2010 is now 02 year and 09 months imprisonment.
    

CF 146 of 2010

16. Considering the summary of fact you have admitted, I set my starting point of sentencing for 18 months imprisonment. After considering the aggravating and mitigating facts and your guilty plea you are sentenced to 09 months imprisonment.
    

Final Order

17. In CF 145 of 2010, you are sentenced to 2 years and 09 months imprisonment.
    
18. In CF 146 of 2010, you are sentenced to 09 months imprisonment.
    
19. I order that both sentences to be run concurrent to each other. Total period of imprisonment is 02 years and 09 months.
    
20. As per the requirements of Sentencing and Penalties Decree 2009, I order that you serve 18 months imprisonment without being eligible to parole. After you serve 18 months, prison authorities can consider whether you are suitable to be released on parole.
    
21. Since you are in custody from 01st February 2010, I order that your sentence to be effective from that day.
    
22. 28 days to Appeal.
    

On this Friday the 24th day of December 2010

Kaweendra Nanayakkara
Resident Magistrate