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State v Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 054 of 2010
Criminal Case No: HAC 055 of 2010
Criminal Case No: HAC 056 of 2010

STATE

V

MATAIASI BULIVOU SUSU

Hearing: 24th June 2010
Sentence: 2nd July 2010

Counsel: Mr. W. Pillay for State
Mr. A. Reddy for Accused

SENTENCE

[1] Mataiasi Bulivou Susu, you stand convicted of the following offences on your pleas of guilty:

Case No: HAC054 of 2010

First Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code Cap 17.

Particulars of Offence

MATAIASI BULIVOU SUSU with others, on the 13th day of March 2006, at Suva in the Central Division, robbed Ratnesh Singh s/o Rajesh Singh of cash $45.00, of a wrist watch valued at $50.00, one gold ring valued at $300.00, one gold chain valued at $200.00, a Nokia mobile phone valued at $199.00, all to the total value of $794.00, the property of the said Ratnesh Singh s/o Rajesh Singh and immediately before such robbery used personal violence on Ratnesh Singh s/o Rajesh Singh.

Second Count

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Sections 253 and 256 of the Penal Code Cap 17.

Particulars of Offence

MATAIASI BULIVOU SUSU with others, on the 13th day of March 2006, at Suva in the Central Division, knowingly and wrongfully confined Ratnesh Singh s/o Rajesh Singh.

Third Count

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code Cap 17.

Particulars of Offence

MATAIASI BULIVOU SUSU with others, on the 13th day of March 2006, at Suva in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing, took to their own use a motor vehicle registration number LT 5417, the property of Ratnesh Singh s/o Rajesh Singh.

Case No: HAC055 of 2010

First Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code Cap 17.

Particulars of Offence

MATAIASI BULIVOU SUSU with others, on the 14th day of March 2006, at Nasinu in the Central Division, being armed with a cane knife robbed the Shell Service Station – Laucala Beach Estate of $546.00 cash and cheques worth $330.00 to the total value of $876.00, the property of Shell Service Station, Laucala Beach Estate.

Second Count

Statement of Offence

LARCENY: Contrary to Sections 295(1) and 262(2) of the Penal Code Cap 17.

Particulars of Offence

MATAIASI BULIVOU SUSU with others, on the 14th day of March 2006, at Nasinu in the Central Division, stole a SMV Brand Taxi meter valued at $300.00, the property of Ratnesh Singh s/o Rajesh Singh.

Case No: HAC056 of 2010

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code Cap 17.

Particulars of Offence

MATAIASI BULIVOU SUSU with others, on the 14th day of March 2006, at Nabua in the Central Division, robbed two (2) cash registers valued at $600.00 and cash amounting to $710.87 all to the total value of $1,310.87 and immediately before such robbery, threatened to use personal violence to the said SEREANA MATANISIGA.

Facts

[2] The facts are that on 13 March 2006 at about 11pm you and your two accomplices hired a taxi from Nepani to go to Waimanu Road. The taxi driver was a 28-year old Indian man. When you arrived at Waimanu Road, your accomplices grabbed the driver from behind and punched him several times. He was gagged with a cloth and dumped into the boot. He was robbed of his watch, gold ring, gold chain, cash earnings and mobile phone, to a total value of $794.00. The victim was threatened that he would be killed if he raised alarm. On the same night, the victim’s taxi was used in two other robberies while he remained gagged in the boot.

[3] You and your accomplices robbed two service stations. The entries to the service stations were gained by smashing the glass doors with stones. The employees of the service stations were threatened. From one station $600.00 cash and from the other station $546.00 cash were stolen. After using the taxi as the getaway vehicle, it was abandoned in an isolated location with the gagged taxi driver in the boot. The taxi meter was taken from the vehicle.

The Sentencing and Penalties Decree

[4] Sentencing is now governed by the Sentencing and Penalties Decree 2009 (the Decree), which came into force on 1 February 2010. The Decree applies to proceedings for offences before 1 February 2010 (s.61(1)). In sentencing an offender the court must have regard to the matters prescribed in section 4(2). It is not necessary that all those matters will be relevant in any one case. Only the relevant factors are to be considered.

Maximum penalty (s.4(2)(a))

[5] Section 4(2)(a) allows the court to take into account the maximum penalty for the offence. The maximum penalty for robbery with violence under the Penal Code is life imprisonment. Wrongful confinement carries 1- year imprisonment. Unlawful use of motor vehicle is punishable by 6 months imprisonment, while the maximum penalty for larceny is 5 years imprisonment.

Sentencing guidelines (s.4(2)(b))

[6] Section 4(2)(b) permits the court to have regard to any applicable guideline judgment in relation to a particular offence. The dominant offence in this case is robbery with violence. The other offences arose in the course of committing the three robberies. Therefore, I proceed to sentence on the basis of the established guidelines for the offence of robbery with violence.

[7] The current sentencing practices and guidelines for robbery with violence have been set out in cases such as State v. Basa Criminal Appeal No: AAU0024 of 2005 (24 March 2006); Wainiqolo v. The State [2006] FJCA 70; AAU0027.2006 (24 November 2006) and State v. Rokonabete & Ors. [2008] FJHC 226; HAC118.2007 (15 September 2008). These cases indicate the sentences for organized gang robberies range from 8 years to 14 years imprisonment.

[8] In Rokonabete (supra), this Court summarized the principles to be:

"The dominant factor in assessing seriousness for any types of robbery is the degree 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."

Nature and gravity of offences (s.4(2)(c))

[9] I must consider the nature and gravity of the offences you committed. The offences are not trivial. The offences are serious because they involved the actual use of physical violence or threat of violence. You went on a sphere by committing three robberies with no regard to the personal safety of the victims or security of their properties.

Degree of responsibility (s4(2)(d))

[10] You embarked on a joint enterprise after planning the offences with your accomplices. Your counsel has pointed out that you did not personally cause any violence. That may be true but under the doctrine of joint enterprise you are equally responsible for the violence inflicted by your accomplices. You are equally culpable as your accomplices.

Victim impact (s4(2)(e))

[11] The victims were vulnerable by virtue of their employments. They are always exposed to risk of harm because they provide services to the public and they are in possession of cash earnings. For these reasons, an attack on the public transport providers and employees of service stations must not be condoned. Such attacks must be denounced. Otherwise, the public will be deprived of essential services if the providers cease to operate these services because of fear of becoming victims of crime.

[12] Fortunately, the victims were not physically injured. But being gagged and driven while in the boot of a vehicle must be a horrific experience for the victim. Also, being threatened with violence by a gang to hand over the property must be daunting to the victim. These experiences cannot be forgotten easily and the emotional impact that such experiences leave behind on the victim cannot be ignored by the court.

[13] During the course of the service station robberies, the premises were damaged, but the court has not been presented with evidence of the monetary loss to the complainants. Also, there has been no attempt to repatriate the complainants for the loss they have suffered from the robberies.

[14] When you were arrested, you were found in possession of the stolen properties of the taxi driver except his mobile phone.

Guilty plea (s.4(2)(f))

[15] By pleading guilty, you have saved considerable time and resources of the court. You were formally charged by the police on 14 March 2006. While the charges were pending you breached your bail condition by absconding. Subsequently, you were arrested and charged with absconding bail under the Bail Act and was sentenced to 8 months imprisonment, which you have already served. It appears that when you absconded, the charges were withdrawn and you were re-charged on 19 January 2010. You elected High Court trial and on 19 March 2010 you appeared in the High Court for first call. On 23 April 2010 the Information was filed. Shortly after you engaged counsel, you pleaded guilty to the charges.

[16] I disregard the earlier proceedings and treat your guilty pleas to be made at the first reasonable opportunity after consulting counsel. By pleading guilty, you have shown genuine remorse for your conduct. However, I do not give any weight to the age of the offences because you are the author of the delay and cannot benefit from it.

Previous good character (s.4(2)(i))

[17] At the time you committed these offences, you had a clean record. You were a student at the Fiji Institute of Technology studying Plant Maintenance Trade Certificate for three years and were doing apprenticeship at a resort. Your father has given evidence of your character. He said the commission of these offences is out of character for you. Your father said you are a victim of bad company.

Aggravating factors (s.4(2)(j))

[18] I take the following factors to have aggravated your offending:

- the victims were public service providers;

- the gagging and abandoning of the taxi driver in the boot of a vehicle;

- the involvement of three offenders; and

- the damages done to the properties of the victims.

Mitigating Factors (S4(2)(j))

[19] Your counsel has presented an impressive mitigation on your behalf. At the time of the offences, you were 22 years old and came from a decent family background. You have a partner and a child from that relationship. I take these factors to mitigate your offending:

- the early guilty pleas;

- remorse;

- previous good character;

- young age;

- co-operation with the police; and

- recovery of most of the stolen properties.

Purposes of punishment

[20] I bear in mind that the purposes for imposing a sentence are provided by section 4 of the Decree as follows:

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

Starting point

[21] I consider it just and appropriate to sentence you on the basis of the dominant offence of robbery with violence. Since the amounts involved are not substantial and no physical injuries were caused to the victims, I pick 6 years as a starting point for each offence of robbery with violence. I increase the sentence by 2 years to reflect the aggravating factors. For the guilty pleas and other mitigating factors, I reduce the sentence by 4 years.

Remand period

[22] Section 24 of the Decree provides that any period that an offender serves in custody on remand has to be taken into account by the court. You have spent 8 months as a serving prisoner for the offence of absconding bail in this case and 11 months on remand awaiting trial. Only the remand period awaiting trial is relevant, which I take into account. With some adjustments for the remission, I reduce your sentence by 1 year to reflect the remand period.

Sentences

[23] On each count of robbery with violence you are sentenced to 3 years imprisonment. On the count of unlawful use of motor vehicle you are sentenced to 4 months imprisonment. On the count of wrongful confinement you are sentenced to 6 months imprisonment. On the count of larceny you are sentenced to 12 months imprisonment.

[24] I have considered whether you should serve your sentences concurrently or consecutively. If I make your sentences consecutive, you will end up with a total sentence of 10 years and 10 months. In my judgment a total sentence of more than 10 years will completely take away the prospects of rehabilitation from you. You are a young person with previous good character and with an incomplete tertiary qualification. In these circumstances, the likelihood of you reoffending is slim.

[25] I order that you serve your sentences concurrently.

[26] Your counsel has asked for a suspended sentence. While this court has power to suspended a term of 3 years imprisonment pursuant to section 26(2)(a) of the Decree, I have decided not to suspend your sentences. You committed three robberies on one night together with three other offences. The offence of robbery with violence is too prevalent in our community and your sentence must reflect the society’s disapproval of your conduct.

Non-parole period

[27] Section 18(1) of the Decree makes it mandatory for the court to fix a non-parole period for any sentence that is more than 2 years imprisonment. For each term of 3 years imprisonment for robbery with violence I fix a non-parole period of 2 years.

[28] Your total sentence is 3 years imprisonment with a non-parole period of 2 years.

[29] You may appeal against sentence within 30 days with the leave of the Court of Appeal.

Daniel Goundar
JUDGE

At Suva
2nd July 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Messrs. Reddy Barristers & Solicitors for Accused