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State v Singh [2011] FJMC 160; Criminal Case 633.2008 (14 November 2011)

IN THE RESIDENT MAGISTRATE'S COURT

AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL JURISDICTION

Criminal Case No. 633/08

STATE

VS

SAMUEL DONALD NILESHWAR SINGH

For Prosecution: Sgt. Paul Taito
For Accused: In Person

SENTENCE

"Samuel" you appear for sentence in this court, after pleading guilty to the offence of "Robbery with Violence" contrary to section 293(1)(a) of the Penal Code, Cap 17.

I am satisfied that your plea is "unequivocal" and that you understand the consequences of your plea.

"Samuel" you are a resident of "Buabua' road, Lautoka. The complainant "Ranjila Rajini" is a resident of "Lovu" Lautoka. She was employed at "K.B Maharaj and Sons" Shopping Cente, at Lovu, Lautoka as a Sales girl.

Around 4.30pm, on the 30th of November 2007, you being armed with cane knives with four others, invaded the said shopping centre and robbed cash of $1500.00, assorted cigarettes valued at $170.00 and a remote alarm control valued at $75.00 to the total value of $1751.00, after threatening the said salesgirl.

None of the robbed items were recovered by the police. A rental car with a false number plate was used in commission of the offence.

The above mentioned summary of facts was read over to you by the prosecution in open Court. You admitted the summary of facts.

I see no aggravating factors in this case.

Mitigating Factors

• You are remorseful for your actions and deeds.
  
• You tendered an apology to Court.
  
• You co – operated with the Police by admitting the offence.
  

The offence of "Robbery with Violence" contrary to Section 293 (1)(a) of the Penal Code, is a felony and is liable to imprisonment for life with or without corporal punishment. This is an indication of the seriousness with which the offence is viewed by the legislature.

The tariff for "Robbery" is 04 - 07 years imprisonment. " Sakiusa Basa –v- State "[2006] FJCA.23.

His Lordship justice Gounder in the case of "State –v-Mataiasi Bulivou Susu[2010] FJHC 226, upon a survey of authorities, found that organized gang robberies attract the sentence of 8 – 14 years imprisonment.

This findings seems to have been persuaded by the dicta of their Lordships of the Court of Appeal in Sakiusa Basa vs the State (Criminal Appeal AAU 24/2005), upholding the conclusions of Shameem J, which read:

"Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises 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.

The 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".

State vs Rokonobete and others [2008] FJHC 226, which was referred to by His Lordship Justice Gounder in Susu's case (supra), has summarized the guiding principles in sentencing in cases involving robbery. They are:

"From these authorities, the following principles emerge. The dominant factor in assessing seriousness for any types of 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 of 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".

According to Justice Gounder in the State vs Sakiusa Rokonabete and three others (Ciminal Case No.HAC 118 of 207 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 vs Timoci Delana [HAC 190 of 2008, 108, 113 and 126 of 2009 on 01st February 2010], Justice Gounder emphasized the above-mentioned facts as aggravating factors.

According to the Court of Appeal Judgement by Sheppard JA.Gallen JA and Ellis JA in Singh vs State {[2004] FJCA 8; AAU008.20000S (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)
   

Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar natures;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

Section 4[2] of the decree outlines what a sentencing Court must consider when sentencing an offender:

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceeding at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

At this stage, I address my mind to the legal principles enunciated in the case of "Divendra Bija vs State" 43 FLR 144. In this case it was held "each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle".

"Samuel" you did not plead guilty to the charge on the date of arraignment. Initially, you pleaded not guilty to the charge and about three years after your first appearance in this matter; you changed your former plea and pleaded guilty to the charge. Hence,your plea of guilty is belated. However, you are entitled for a discount for your plea to reflect saving the victim [complainant] from the trauma of giving evidence.

It has been well recognized practice in common law to take into account a plea of guilty in the sentence. Most common Law Jurisdictions have codified this practice in sentencing statutes. In Fiji, the practice is a part of the common law.

In "Navuniani Koroi vs The State" Criminal Appeal No. AAU0037 of 2002S the court said:

"It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is a recognition of his contribution as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense. In offences of sexual nature, the amount of reduction is generally more because the plea saves the victim from having to attend the trial and relieve her experience in the witness box".

The weight to be given to a guilty plea depends on a number of factors. Some of these factors were identified by Hunt CJ at CL in R v. Winchester (1192) 58 A Crim R 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contribution, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 AT 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contribution, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus savings affected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery – Parker and Abadee JJ, 22 August 1991), at p. 12.

In the "Principles of sentencing" second edition, by D.A.Thomas, at P.46 wrote
"The Final step in the process of calculating the length of tariff sentence is to make allowance for mitigation, reducing the sentence from the level indication by the facts of the offence by an amount appropriate to reflect such mitigating factors as may be present. Mitigating factors exist in great variety, but some are more common and more effective than others. They include such matters as the youth and previous of the offender...."

I select eight (08) years imprisonment as my starting point. I reduce two years (02) for the guilty plea. I reduce one (01) year for the mitigating factors.

"Samuel" you admitted that you have thirteen (13) previous convictions. Hence, you are not a first offender. You are not entitled for a discount for your previous good behaviour.

Now your sentence stands at five (05) years imprisonment.

"Samuel" since you are clearly remorseful, you must be given an opportunity to prove your remorse by embarking on a period of good behavior.

"Samuel" I sentence you for five (05) years imprisonment. The term of imprisonment should run concurrently to any pre-existing sentence.

28 days to Appeal.

Dated at Lautoka on the 14th day of November 2011.

Jude Nanayakkara
RESIDENT MAGISTRATE

MAGISTRATE COURT – 03
LAUTOKA.