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State v Jitoko [2011] FJMC 92; CRC 1008.2007 (25 August 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1008/2007.

STATE

V

ASIVOROSI JITOKO,
OPERAIA VULI,
AISEA LEDUA

For Prosecution: - Mr. Fotofil,
First Accused Person: - In person,
Second Accused Person:- In person,
Third Accused Person:- In person

SENTENCE FOR THE 1ST, 2ND AND 4TH ACCUSED

1. You ASIVOROSI JITOKO (1st accused), OPETAIA VULI (2nd accused), and AISEA LEDUA (4th Accused) were found guilty and convicted at the conclusion of the hearing for two counts of "Robbery with Violence" which is punishable under section 293 (1) (b) of the Penal Code Act 17, entailed a punishment up to life imprisonment.
   
2. The brief summary of these two counts are that three of you together with another accomplice forced into the shop owned by Mrs. Bedh Wati Lal and Mr. Veer Chand Lal on 3rd day of June 2007 and stole therein. Prior to steal therein, your accomplice stabbed said Mrs. Wati on her hand and Opetaia Vuli, you punched Mr. Veer Chand on his forehead. You tied Mr. Veer Chand and then stole therein the items mentioned in the particulars of the offence in respect of these two counts.
   
3. The learned, State Counsel, submitted in his sentencing submission that this case involve with a shop invasion. Moreover, the learned counsel for the prosecution suggested in his submission the aggravating factors are
   
   1. The use of weapons during the robbery,
      
   2. Mr. and Mrs Lal were assaulted whereby Mr. Lal was knocked onto the ground and more seriously Mrs. Lal was stabbed with a knife.
      
   3. The victims were in their late 40s at the time of the offending,
      
   4. The crime was committed by group,
      
   5. About $ 6500 in cash and property were taken from the victims but a few bottles of alcohol and jewellery were recovered.
      
4. The learned counsel impelled that the offences in this nature are becoming a serious problem and warranted a custodial sentence. In addition the learned counsel drew my attention that the tariff as set out in " State v Elia Manoa ( Criminal Case No 108 of 2009) for the offence of gang robbery is between 8-14 years imprisonment.
   
5. The first accused person refused to mitigate when he was offered opportunity but 2nd and 4th accused persons tendered their respective mitigation submissions. The 2nd accused person highlighted the circumstances faced by his two kids after his wife left him sometimes back and now only his ageing mother has to look after his two little kids. The 4th accused person rather made a statement of his innocent and his displeasure to the judicial system which I disregard as mitigating factors, but I do not consider them as aggravating circumstances against the 4th accused person. In addition the 4th accused person stated the mental agony that he had to face when his mother died while he was in remand pending this hearing.
   
6. At this point I turn to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree as these two counts of Robbery with Violence founded on the same facts and/ or forms a series of offences of the same and similar character. .
   
7. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054; HA0; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprent. Justice Shameem in Seseu v State 2003, FJHC 224, HAM0043J, 2003S, 03S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem in sa Basa vs. the Sthe State (CrimAppeal AAU 24/2005), held that "'Sentences for robberies involving firearms should range from six to eigars. er range of four to seven years is appropriate whte where firearms are not used and the pree 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. 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'
   
8. 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 assessing seriousness for apes of robbery is the degredegree 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.