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State v Tawake [2016] FJMC 227; Criminal Case 1120.2016 (11 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1120/2016

STATE

V

JOSEFA TAWAKE

Counsel : Ms. Shirley Tivao for the State
Ms. Ruci Nabainivalu (LAC) for the accused
Date of Sentence : 11^th of November 2016

SENTENCE

1. JOSEFA TAWAKE, you were charged with another to one count of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Decree No. 44 of 2009.
2. You pleaded guilty for this charge and also admitted the following summary of facts:

“On the 1st July 2016 at around 5pm Steven Suresh Narayan (PW1) recalls that an i-taukei youth entered Fexco Pacific Fiji Limited based at Damodar City complex and asked what time Fexco Pacific Limited would close. A few seconds after the conversation, another i-taukei youth entered into the shop and grabbed PW1 from behind. He then pushed PW1 towards the counter and held him down. PW1 further stated that another i-taukei youth grabbed the tilt and exited the main door, the tilt that was taken by i-taukei youths contained foreign currencies.

Renuka Narayan (PW2), operations manager for Fexco Pacific Fiji Limited. On the 1st July 2016 PW1 observed the accused and 2 other youths walk into Fexco Pacific Fiji Limited based at Damodar City complex. The tallest of the three walked towards PW2 grabbed hold of her neck, and held her head against the counter preventing her from making any other movements, further she was held in such a way that PW2 could not speak or scream. PW2 sustained injuries due to the force used by the assailant.

PW2 further stated, that the smallest of the three jumped over the counter and got a hold of the tilt on top of the CPU and jumped out again. The tilt contained the following foreign currencies;

1) Australian dollars amounting to $3870.00

2) Canadian dollars amounting to $400.00

3) Euro dollars amounting to $200.00

4) New Zealand dollars amounting to $650.00

5) US Dollars amounting to $1880.00

6) Vanuatu dollars amounting to $1000.00

7) Samoan dollars amounting to $5.00

8) Fiji dollars amounting to $1000.00

3. I am satisfied that your plea was made voluntarily and unequivocal .Accordingly I convict you for this charge.
4. Maximum penalty for the offence of Aggravated Robbery under the Crimes Decree 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. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar 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".

7. Considering the objective seriousness, I select 10 years imprisonment as the starting point for your sentence.
8. According to your caution statement it was shown this offence was well planned. Further substantial amount of monies including foreign currencies were stolen. Converting the amounts to Fijian currencies based on the time of the incident, plus the Fijian currencies shows nearly $13,000.00 was stolen by you and others from the shop. One of the witnesses was injured from the assault as confirmed from the medical report submitted by the prosecution. I consider these as aggravating factors in this case and add 04 years to reach 14 years imprisonment.
9. In her mitigation submission your counsel submitted that you are 20 years old, single, cooperated with the police, first offender and seeking forgiveness from the court. For these mitigating factors I deduct 02 years to reach 12 years imprisonment.
10. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount (Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007).
11. Further 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.
12. In this case giving full credit to your guilty plea I deduct 1/3 to reach 08 years imprisonment.
13. 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. But you were remanded for only insignificant time period and I am not going to consider that in this case.
14. Aggravated Robbery seems to be a prevalent crime in this country at the moment .Hence the courts have a responsibility to send a clear message to the public that this kind of offence, whether committed on a ‘soft’ target such as individuals or a ‘substantial’ target such as a service station or shop, is likely to be visited with a stern and fitting custodial sentence.
15. JOSEFA TAWAKE, you are sentenced to 08 years imprisonment for the offence of Aggravated Robbery contrary to section 311(1) of the Crimes Decree with a non- parole period of 06 years .
16. 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