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State v Gade [2010] FJMC 186; HAC203.2010 (22 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case HAC No: - 203/2010

STATE

V

TETILO GADE

For Prosecution : - Mr. Ratakele
2nd Accused : - In persons

SENTENCE THE 2nd ACCUSED

1. You TETILO GADE, was convicted by this court, for the offence of 'Aggravated Robbery', which is punishable under Section 311 (1) (a) of the Crimes Decree No 44 of 2009, entailed a punishment up to 20 years of imprisonment.
   
2. The conviction was entered consequent upon your "plea of guilty' on 11th of November 2010. I tisfied that you fully comprehended the legal effects and tand that your plea was voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that the offence of 'Aggravated Robbery' were committed on Mr. Shavneil Singh at about 11.30 p.m. on 11th of September 2010 at Usher Street, Suva .with two others.
   
4. Further, the summery of facts revealed, that you and two others were approached the said Mr. Shavniel Singh when he was walking along Usher Street with a friend. You and others held the hand of the Mr. Shavniel Singh and you robbed his Alcatel Mobile Phone valued at $ 30 and $ 55 cash.
   
5. This is a case involved a planed gang robbery which was committed at a public place, in a joint enterprise. You and two others approached the victim and robbed him by holding his hands. Though the total amount of property including the cash stolen is $ 85, I do not consider it in favor of you as the gravity and impact of the offence on victim and the society is immeasurable in this type of gang robberies. The offence of Aggravated robbery is becoming a serious problem and warranted a great judicial intervention with responsibility.
   
6. You made a plea in mitigation on behalf of you. You seek forgiveness and leniency in sentencing.
   
7. I now proceed to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decre.
   
8. The offences involving violence gang robberies are prevalent crime in the society and it's made the entire country into an insecure and vulnerable place. The purpose of sentencing you for the offence of aggravated robbery in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, more importantly the to signify that the court and the community denounce the commission of such offences
   
9. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226054.2010; HA0; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprisonment. Justice em in Seseu v State 2003, FJHC 224, HAM0043J,043J, 2003S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem iSakiusa Basa vs. the Sthe State (Criminal Appeal AAU 24/2005), held that
   

"'Sentences for robberies involving firearms should range from six to eight yea lowege of four to sevo seven years is appropriate where firearms are not used and the premises ises are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences should be considered aggravating features. The sentence may be reduced where the offender has no previous convictions, has pleaded guilty and has expressed remorse. This list of aggravating and mitigating features is by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case'

10. Justice Goundar in Susu'e (supra),pra), has summarized the guiding principles in sentencing in cases involving robbery. They are:
    

' From these authorities, the following principles emerge. The dominant factor in assessingousness for any types of roof robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of items taken and the fact that an offence was committed whilst the offender was on bail.

The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved.

11. His Lordship Justice Madigan in State v Rasaqio [2010] FJHC 287; HAC 155/2007, observed that the normal range of sentence for robbery with violence is now 10 to 16 years in the High Court
    
12. In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and careful perusal of the mitigation submission of of you, I now draw my attention to determine an appropriate starting point for you. This is planned gang robbery at a public Place in night. In line with above sentencing guidelines and principles, I select 10 years imprisonment period as a starting point.
    
13. You committed this offence in a join enterprise. I find this is a well calculated planned gang robbery. You with two others carried out your pre-planned robbery in most scandalous manner. By virtue of the principle of join enterprise each one of your culpability and degree of responsibility for inflicting of violence and robbing the complainant same as of your accomplices.
    
14. The impact of the offence on the victims must be a horrified experience as he was suddenly surrounded by gang of three youth, threaten and robbed. This dreadful experience definitely remains with him in rest of his live. You inflicted violence and robbed him while he was enjoying his freedom with his friend at usher street.
    
15. Your act of offence could have the effect of endangering innocent public and their freedom of life. You demonstrated that you have no respect and regard for other's rights and freedom. You completely disregarded the law and order and utilize the vulnerability and insecurity of the victim to carry out your criminal act.
    
16. I now draw my attention to address the mitigatory factors in your favors.
    
    1. You are 21 years of age,
    2. Promise not to re – offend,
    3. Asked leniency and forgiveness,
    4. First Offender,
    5. Early plea of guilt,
       
17. At this point, I now draw my attention to the finding of Nawana J in " State v Vilikesa Tilalevu and Savenaca Mataki ( 2010) FJHC 258, HAC081.2010(20 July 2010)) in relation to the First offenders, where his lordship Nawana J held "I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'Firsender Syndrome' -160;- where peoould tempt empt to commit serious offences once in life under the firm belief that they wout get imprisonment in custody as they are first offenders. The resultant position is that that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule".
18. In view of aforementioned aggravating factors I increase 5 years, to reach the period of 15 years. In considering your early guilty plea I reduce 5 years and in view of other mitigatory factors, I reduce 7 years to reach the period of 3 years. Furthermore, I reduce 3 months for the period that you were in remand prior to this sentence according to the section 24 of the Sentencing and Penalties Decree Now your sentence reaches to 33 months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is above two years could not be suspended by this court.
    
19. Accordingly, I sentence you for 33 months imprisonment period for the offence of Aggravated Robbery contrary to section 311 (1) (a) of the Crime Decree No 44 of 2009, . Further in term of section 18 (1) of the Sentencing and Penalties Decree you are not eligible for parole within a period of 2 years.
    
20. Since this court exercising the extended jurisdiction of the High Court in your case, you may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

On this 22nd day of December 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.