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State v Veikoso [2016] FJMC 110; Criminal Case 1386.2015 (5 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: -1386/2015

STATE

V

KOROI VEIKOSO

Counsel : Ms. Unaisi Tamanikaiyaroi for the State

Ms. Raisua(LAC) for the Accused

Date of Sentence: 05^th of August 2016

SENTENCE

1. KOROI VEKISO, you were charged with two counts of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Decree No. 44 of 2009.
2. You pleaded not guilty and also challenged your confession. But on the day of voir-dire hearing, through your counsel you informed this Court that you want to take a progressive approach.
3. You pleaded guilty on 03^rd of August 2016 and also admitted the following summary of facts presented by the State :

On the 25th day of June 2015 at lot 56 Upper Ragg Avenue, Namadi Heights in the Central Division, Sang Te Park (PW1) was driving his vehicle with his wife Mikyung Kim (PW2) seated in the passenger’s seat. Upon reaching their residence PW1 turn into their driveway, drove into their compound and whilst still seated in their vehicle, the two unknown suspects opened the doors of the vehicle and assaulted PW1 by punching him on the face. Both suspects then robbed PW1 and PW2 of the following items:

1. 1 x white sports bag
2. 1 x wallet containing $1,200.00 FJD

100. 1 x black Samsung Galaxy 5 valued at $2,000 FJD

4. 1 x set of car keys valued at $200 FJD
5. 1 x Samsung Galaxy 4 valued at $2,000 FJD
6. Cash in the sum of $300 FJD
7. 1 x set of car keys

All to the total value of $5,700.00 FJD the property of PW1 and PW2.

The two unknown persons then jumped over the compound gate and ran towards the main road along Ragg Avenue.

Koroi Veikoso (A1) was arrested by police on 4th August 2015 and caution interviewed on the same day. The accused made full admissions to aiding in the robbery and admitted that he played the role of the driver and dropped off both unknown suspects at the residence of PW1 and then went and waited for both the suspects at their rendezvous point at Deoji Street (Q&A 40). The accused also admitted that before he dropped the suspects off, he was informed by one of the unknown suspects that they were going to rob PW1 who was turning his vehicle into his driveway (Q&A 43). A1 waited at Deoji Street for about twenty minutes when both suspects appeared and were picked up (Q&A 45, 46).

A1 was formally charged on 5th August 2015 and also admitted that he was the driver in the robbery and that he dropped the unknown suspects at PW1’s residence where they robbed PW1 and PW2. A1 then later picked both suspects at their rendezvous point (Q&A 8).

Only one item was recovered by police namely 1 x Samsung S5 mobile phone.

The accused person has previous convictions. (CRO Report attached).

4. I am satisfied that your plea was voluntarily and unequivocal .Accordingly I convict you for this charge.

The Law and Tariff

5. Maximum penalty for the offence of Aggravated Robbery under the Crimes Decree is 20 years imprisonment.
6. 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.”

7. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010)the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

8. The offences you committed are prevalent in the society at the moment instilling fear to the public. But according to the summary of facts and your confession you seem to have played a minor part in the offending.
9. Hence considering the gravity of offending and your culpability I select 08 years imprisonment as the starting point for each count.

Aggravating Factors

10. The State in their sentencing submission submitted that the aggravating factors were there was some planning, this was committed in the compound of the victim and before the robbery some force was used on the victim.
11. Using force on a victim is an element of this offence and therefore I do not consider that as an aggravating factor. But the fact shows there was some degree of planning for this offence between the offenders. The accused picked other offenders and dropped them at the scene of the crime and later waiting for them at Height Taxi Stand.
12. Further the offences were committed in the compound of the victim. The victims were still inside their vehicle, when the doors were forcefully opened, PW1 was assaulted and items were stolen from their possessions.
13. For these aggravating factors I add 02 years to reach 10 years imprisonment for each count.

Mitigating Factors

14. The learned defence counsel from Legal Aid submitted following mitigating factors:
    1. 30 years old;
    2. Married with a 03 children;
    100. Co-operated with the police.
15. For these mitigating factors I deduct 02 years to reach 08 years imprisonment for each count.
16. You have previous convictions and therefore not entitle for discounts for your character.

Early Guilty Plea

17. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount.
18. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea ,this should be discounted for separately from the mitigating factors in a case”.

19. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
20. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in Posate Rainima v The State , Criminal Appeal No AAU 0022 of 2012 where the Lordship said :

“[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.

[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.

[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.

(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.

(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatorycaution interview has been admitted into evidence is not deserving of any discount whatsoever.”

21. You pleaded guilty on the day of voir-dire hearing and in my opinion not entitle for full discounts of 1/3. But there need to be some credit given to you and accordingly I deduct 1 year from your sentence to reach 07 years imprisonment.
22. Section 24 of the Sentencing and Penalties Decree stipulates that the remand period has to be considered as the period of imprisonment an accused already served. In this case you were in remand for nearly one month and I deduct that period to reach 06 years 11 months imprisonment for each count.
23. As noted in Laisiasa Koroivuki v the State(supra) sentencing court has to give reason if the final sentence falls below or higher than the tariff and in this case the mitigating factors and early guilty plea of the accused has allowed him to get this sentence.
24. Now I have to consider whether your sentences need to be concurrent or consecutive and it is relevant to consider the totality principle and same transaction rule for that.
25. Totality principle was discussed by DA Thomas in Principles of Sentencing ... at pp 56–57 :

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

26. In Murthi v State [2016] FJHC 373; HAA40.2015 (6 May 2016) his Lordship Justice Aluthge said :

“It is said in Archbold [2012] p. 732, that consecutive sentences should not be imposed for offences which arise out of same transaction or incident, whether or not they arise out of precisely the same facts, but much is left to the discretion of the court. (R. v Lawrence, 11 Cr. App. R (S) 580 CA) It is only in exceptional circumstances that a court will impose consecutive sentences if the offences arise from the same transactions. (R v. Wheatley, 5 Cr. App. R. (S) 181 CA).”

27. Considering the above principles, I decide that these sentences to be concurrent.
28. You are serving prisoner and Section 22(1) of the Sentencing and Penalties Decree states that Subject to sub-section (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.
29. In view of the above provision this sentence will be concurrent to your present sentence.
30. Section 20 (1) of the Sentencing and Penalties Decree states that If a court has sentenced an offender to a term of imprisonment with a non-parole period and the offender is sentenced to a further term of imprisonment before the expiration of the non-parole period, the court must fix a new single non-parole period in respect of all sentences the offender is to serve or complete.
31. Therefore for your all sentences I fix a new non-parole period of 05 years imprisonment.
32. The public need to be protected in this country and also the message needs to be given that these offences will be dealt with severe sentences to deter future offenders.
33. KOROI VEKISO, you are sentenced to 06 years 11 months imprisonment for the offence of Aggravated Robbery contrary to section 311(1) of the Crimes Decree with a non- parole period of 05 years .
34. Since this court is exercising the extended jurisdiction of the High Court, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

Shageeth Somaratne

Resident Magistrate