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State v Nacola [2011] FJMC 51; CRC1973.2008 (5 April 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case Nos: 1973 of 2008
1974 of 2008

STATE

V

MESAKE JOE NACOLA

For Prosecution: IP Gosai
Accused: In Person
Date of Sentence: 05th April 2011

SENTENCE

1. After a trial Court found you guilty for charge of "Robbery with Violence" in CF 1973 of 2008 and CF 1974 of 2008.
   
2. Maximum sentence prescribed for the offence under Sec. 293 (1) (b) is "life imprisonment". The tariff for the 'Robbery with violence' is 4 to 8 years imprisonment.
   

Seriousness of the offence and aggravating factors

3. 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.
   
4. 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)
      
5. 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".
   
6. Considering the facts of the case I set my starting point of sentencing for 04 years.
   
7. You have 32 previous convictions against your name. However 28 previous convictions are more than 10 years old and thereby I disregard those convictions. Latest previous conviction was in 2006 and thereafter no adverse record against your name.
   
8. In both cases, other than the elements of offence I find no aggravating circumstances to enhance your sentence.
   
9. In mitigation you admitted committing these crimes and informed the Court that you did it just to support your family. You are 40 years old and married with 02 children. Presently, you are on rehabilitation under yellow ribbon programme. Prime Minister's office had helped you to start a pig farm under the rehabilitation programme. You are a disable person with one leg.
   
10. Considering above-mentioned mitigation I reduce 02 years from your sentence. Your sentence now stands for 02 years imprisonment. I am mindful to the fact that sentences of 02 years and below could be suspended by this Court.
    
11. These two cases had been dragging on for three years. Presently you are under a rehabilitation programme. I am of the view that a custodial sentence at this stage would frustrate the actual meaning of rehabilitation. Considering the fact that there are no other adverse reports against you other than your previous convictions, I proceed to suspend the two year imprisonment period with conditions for 05 years.
    
12. During the operational period of suspended sentence I order you to report to the nearest police station on every 01st and 15th day of every month. In the event, you commit any other offence or breach the reporting condition; you will be liable to serve 02 years imprisonment.
    
13. 28 days to appeal.
    

On this Tuesday the 05th day of April 2011

Kaweendra Nanayakkara
Resident Magistrate