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State v Fabiano [2015] FJMC 80; Criminal Case 651.2015 (10 July 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: -651/2015

STATE

V

JOSEPH FABIANO
MOLITONI KABUKEIREWA
JOELI RARAWA

Counsel: Ms. Navia for the State
Mr.Naco for all the accused
Date of Sentence: 10th July 2015

SENTENCE

1. JOSEPH FABIANO, MOLITONI KABUKEIREWA, JOELI RARAWA you all were charged in this court with one count of Aggravated Robbery contrary to Section 311(1)(a) of the Crimes Decree No. 44 of 2009.

2. The High Court gave the extended jurisdiction to this court and you all pleaded guilty to this charge on 23rd April 2015. You all admitted the summary of facts which state the following:

"The first accused is Joseph Fabiano [Accused 1], 18 years old, unemployed of Lot 7, Flat 12, Mead Road Housing, Nabua. The second accused is Militoni Kabukeirewa [Accused 2], 19 years old, tertiary student of Block 7, Flat 12, Mead Road Housing, Nabua. The third accused is Joeli Rarawa {Accused 3], 24 years old, unemployed, Block 7, Flat 20, Mead Road Housing, Nabua. The complainant is Miriama Sovea [PW1], 20 years old a tertiary student of Lot 36 Bouganville Road, Nabua.

It is alleged that on the evening of the 22nd of March 2015, PW1 went to the shop to buy her Digicel Recharge card. On her way home, she saw the 3 accused persons standing on the opposite side of the Mead Road Housing. It was dark, she kept walking. While approaching the bus stop near the SOPAC garage, Accused 1 wrapped his hands around her and punched her right knee. She shouted and she felt to the ground. The accused tried to cover her mouth; he has a heavy smell of liquor. The other accused persons then robbed her by stealing her Alcatel One Touch Mobile Phone valued at $140.00 and her $3.00 recharge card and 1 x 750ml coke and fled."

3. I am satisfied about the pleas were unequivocal and convict you all for this charge.

THE LAW AND TARIFF

4. Maximum penalty for the offence of Aggravated Robbery is 20 years imprisonment.

5. In Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) his Lordship Chief Justice Anthony Gates said:

"We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them."

6. AGGRAVATING FACTORS

Following were presented as aggravating factors in this case by the State and agreed by the defence also.

i. Evening and was dark

ii. The victim was female

iii. Non- recovery of the recharge cards

iv. The fear instilled and trauma encountered by the victim who was vulnerable

Nonetheless, I do not think any of these could be considered as aggravating factors in this case. The victim was 20 years old female and I do not consider as a vulnerable person. Non- recovery of items is part of the offence. Even though it would be recognized that the victim would be traumatized that is general to any victim who has faced with such a situation. Therefore I believe that there are no aggravating factors in this case.

7. MITIGATING FACTORS

The following were cited as mitigating factors in the mitigation submissions.

1st accused

a. 18 years old

b. Single

c. First offender

d. Parents are separated

2nd accused

a. 19 years old

b .First offender

c. FNU student

3rd accused

a. 24 years old married with a child

b. First offender

c. Remorseful

8. Taking into account the facts in this case, I select 09 years as my starting point for all the accused and deduct 03 years for above mitigating factors to reach to reach 06 years imprisonment. For pleading guilty at the first available opportunity after getting proper legal advice I also deduct 1/3 to reach 04 years imprisonment.

9. As the final adjustment I deduct the remand period to reach 47 months imprisonment. Even though this is far below the tariff I have come to this sentence based on all the mitigating factors present in this case. As a final act of mercy considering the young age and past good behaviors of the accused I would also not fix a non- parole period in this case.

10. JOSEPH FABIANO, MOLITONI KABUKEIREWA, JOELI RARAWA , all of you are sentenced to 47 months imprisonment for the offence of Aggravated Robbery contrary to section 311(1) of the Crimes Decree.

11. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

H.S.P. Somaratne
Resident Magistrate, Suva