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State v Ligaitukana [2012] FJMC 128; Criminal Case 1595.2008 (5 June 2012)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No. 1595/2008

STATE

-v-

TONY MAR TUNAKORO LIGAITUKANA

For Prosecution: PC Ravi
The accused appeared in person

SENTENCE

1. You, TONY MAR TUNAKORO LIGAITUKANA, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

CHARGE:

Statement of Offence [a]

2. ROBBERY WITH VIOLENCE: Contrary to Section 293 of the Penal Code Act 17.

Particulars of Offence [b]

3. TONY MAR TUNAKORO LIGAITUKANA on 26th day of May 2007, at Nasinu, in the Central Division, robbed MAIKA NABALE of a wallet containing $15.00 cash and before the time of such robbery did use personal violence to the said MAIKA NABALE.

4. I reproduce the penal section: Robbery with violence;

293.-(1) Any person who-

(a) being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person; or

(b) robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person,

is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment.

5. In Manoa Baleinakeba v State [2010] HAA 8/10S 16 June 2010 Madigan J held that;given the jurisdictional restraints from MCs, the proper tariff there now should be 7 to 10 years.

6. According to the facts ( which you have admitted) On the 26th day of May 2007 at about 0045 hours one Tony Mar Tunakoro Ligaitukana, Accused 21 years, unemployed of Lot 13 Kinoya Road robbed one Maika Nabale, PW1, 20 years, student of Lot 24 Nasilivata Road at Kinoya Road a wallet containing $15.00 cash. On the above date time and place, PW1 was walking along Kinoya road when he saw the accused wearing a black T-shirt with cloth tied around his forehead and was following him. The accused followed PW1 from Kinoya Traffic Light demanding money from PW1 and also started saying to PW1 if you won't give the money I will kill you. Then the accused opened PW1's bag which contained a wallet with $15.00 cash and the accused ran away.

7. There are no aggravating factors.

8. In mitigation, your church pastor, Rev. Sisa Tikoimakogai, asked non custodial sentence for you. He said this case was hanging from 2008. Only involved money for robbery was $50 and it was never recovered. For last three years the accused had been counselling and he is seeking forgiveness and leniency from this court, prosecution and the public (Victim).

9. I drew my attention to your mitigation. You are not a first offender. You have done same offence between same periods of time in 2008. For that you were given suspended sentence. But this offence was done before the suspended sentence imposed and has no violation of suspended sentence. I am mindful of these facts.

10. You asked non custodial sentence. As I noted in above paragraphs the decided case law, your conduct and this type of offence surely attract custodial sentence. But your pastor says you should be rehabilitated by giving second chance. I note you abstained doing any wrong from 2008. I therefore decided to give second chance.

11. At this point, 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."

12. The incident is stale. In this legal backdrop, the summary of facts, mitigation, value of the items and the nature of offence, I select an alternative sentence for this case. I act under section 44 (1) of the Sentencing and Penalty Decree and adjourn all 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.

B] 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 Valelevu 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.

D] 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.

E] the accused may go for continuous counselling under Pacific Youth Correctional Ministries-Fiji

13. Copy of this sentence is given to the accused and the police and nature of sentence and police supervision is explained to the accused. Police are ordered to file report any breach of these condition forthwith (if any).

14. 28 days to appeal.

Delivered on 05th June 2012, At Nasinu, Fiji Islands,

Sumudu Premachandra
Resident Magistrate