IN THE MAGISTRATE’S COURT AT NASINU
(Extended criminal jurisdiction of the High Court of Suva)

Criminal Case No: 215 of 2010
(M.C Nasinu No: 1006/2010)

STATE

V

RAVUAMA RAINIMA

Mr. J Singh (DPP Office) for the prosecution
The accused present and appeared in person 

SENTENCE

1. You, Ravuama Rainima, are here, to be sentenced on admission of guilt on your own accord for the following offence namely: 

Aggravated Robbery: Contrary to section 311(1) (b) of the Crimes Decree No. 44 of 2009

I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I am further satisfied the facts of this case present, included and proved every elements of this offence. 

2. According to the facts, (which you have admitted), on 09-07-2010 at Nasinu you robbed one Vasiti Cavuilati of one (1) i-phone valued $ 800 and immediately before such robbery threatened the said Vasiti Cavuilati with a knife. 

3. 	Aggravated Robbery -A person commits an indictable offence if he or she — 

(a) commits a robbery in company with one or more other persons; or 

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her. 
Penalty — Imprisonment for 20 years. 

4. Tariffs vary the gravity and nature of these offences. In Manoa Baleinakeba v State [2010] HAA 8/10S 16 June 2010 His Lordship Madigan J. held that; given the jurisdictional restraints from MCs, the proper tariff there now should be 7 to 10 years. Court notes that this Crime was introduced by new Crimes Decree 2009 and earlier it was robbery with violence and sentenced attracted life imprisonment. In State v Vilikesa Tilalevu and Savenaca Mataki (2010) FJHC 258, HAC081.2010 (20 July 2010)) His Lordship Priyantha Nawana J. held for the offence of aggravated robbery tariff is 8-14 years imprisonment following the guidelines of State v Mataiasi Bulivou Susu [2010] FJHC 226. 

Aggravating Factors of the offence

5. Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

- Felonious intention to commit theft
-threatened and used force on the victim
-house breaking and entering

6. You pleaded guilty for the charge at the first instance. Therefore, you are entitled for reduction of your sentence. Normally, exercising court's discretion, superior courts have followed 1/3 reduction for early plea. (as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007. ) But this case, as mentioned in below, I have selected an alternative sentence. Thus, I do not set any starting point for this offence and 1/3 reduction is not therefore apply to this case. 

Mitigating Factors
 7. You are a young, first offender and 17 years of age. You asked forgiveness and leniency. You said that you will not re-offend and you have learnt a lesson from the past bitter experience.

8. In this scenario, should I impose you a custodial sentence or no custodial sentence in this case? The offence you have committed is very serious, grave crime. Therefore, what should be the sentence? I note that you are a first, young offender. I consider sentencing principles and decided cases in this regard. 

9. I draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

 "As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

Now I turn to the Case law in this regard. 

10. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders ought to be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences. (Emphasize is mine)

11. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

12. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first offender is concerned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphasize is mine). 

13. Singh v The State [2000] FJHC 115; Haa0079j.2000s (26 October 2000) Shameem J went on saying;

"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."

14. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed; 

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

15. In State v Mocevakaca [1990] FJHC 87; [1990] 36 FLR 19 (14 February 1990) Fatiaki J (As he then was) dealt with similar type of situation. His Lordship stressed on sentencing in young offenders. His Lordship added; 

"This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders out of prison even I might add at the risk of being lenient.

Needless to say, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender.

If I may say so society has no greater interest than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important consideration in sentencing young first offenders." (Emphasize is mine).

16. This case was a rape case and 5 years imprisonment was quashed and varied. The accused bound over in the sum of $200 with his father as surety, to keep the peace and be of good behaviour for a period of 2 years and released forthwith. 

17. In this legal backdrop, in line with the Sentencing Principles, the summary of facts, mitigation and the nature of offences, I select an alternative sentence for this case. Court thinks the accused should be given a second chance to correct himself. The main object of sentencing is to prevent of doing another crime by the offender. This cannot be prevented by jailing first offenders for every crime. Jailing for first offence, for young offender has to be done with cautious. By imprisoning first offender will mingle with other convicted criminals and may change to a serious culprit in future with a trained criminal mind. The court has a prime duty to concern the society as well as the offender hence balancing decision has to be taken. Therefore prison sentence are not suits for every offence and has to be considered case by case basis. Custodial sentence are therefore for incorrigibles, offenders who involved series of cases or repeated offenders. By monitoring and constant supervision will prevent to do another crime by first offender. If the offender can be reformed or rehabilitated and court is satisfied with procedure then an alternative sentence could be adopted. 

18. Therefore, I act under section 44 (1) of the Sentencing and Penalty Decree and adjourn proceedings for next 3 years. I further impose following conditions under sections 15(1) (g) and 44(3) of said Decree. 

A] The accused is bound over for sum of $ 1000 for next three years to observe peace and good behaviour. If the accused breach any condition, this bond or part of it may be forfeited. In default, accused be sentenced to the prison in appropriate penalty units. 

B] In addition to the above bond, the accused should not commit any offence whatsoever during this period. If you committed any offence or breached any condition you will be sentenced for these offences according to the law. 

C] The accused is ordered to report last Sunday of every month between 6am to 6pm to Nakasi Police Station during 1 year, last Sunday of every three months during 2 year and last Sunday of every six months during final year (Until expiration of next 3 years). Therefore, the accused is placed on police supervision and he should not change his permanent address during this period of time.

D] The accused is placed under the guidance and supervision of Probation officer of Nasinu. Therefore, Accused should contact the Probation officer forthwith. Accused should follow the Probation officer's advice and probation officer is directed to give timely, appropriate guidance and assistance to the accused. 

E] If the accused will comply above conditions, he will be discharged after 3 years under section 44(1) of the Sentencing and Penalty Decree 2009.

19. Copies of this sentence are given to the accused and the police and nature of sentence and police/ probation supervision is explained to the accused. Senior Court officer of this court is directed to issue a copy of this order to Nasinu Probation Officer to facilitate this order. Police and Probation officer of Nasinu are ordered to file report any breach of these condition forthwith (if any). 

20. 28 days to appeal.
On 22nd February 2011 at Nasinu, Fiji Islands 

Sumudu Premachandra
Resident Magistrate