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State Prosecution v Tilalevu [2010] FJHC 258; HAC081.2010 (20 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 081 OF 2010
NAUSORI CRIMINAL CASE NO: 195/2010

BETWEEN:

STATE PROSECUTION

AND:

1. VILIKESA TILALEVU
2. SAVENACA MATAKI
ACCSUED PERSONS

Counsel: State - Ms. Cokanasiga J.
For 1st Accused - Ms. M. Savou
For 2nd Accused - ,, ,,

Date of Hearing: 13th July, 2010
Date of Sentence: 20th July, 2010.

SENTENCE

1. Vilikesa Tilalevu, the 1st accused, and Savenaca Mataki, the 2nd accused, were convicted by this court, as charged upon information dated 28th May, 2010 of the Director of Public Prosecutions for having committed the offence of 'Aggravated Robbery' on 09th April, 2010. The offence, which was punishable under Section 311 (1) (b) of the Crimes Decree No 44 of 2009, entailed a punishment upto 20 years of imprisonment.
   
2. The 1st accused was 20 years and the 2nd was 17 years of age, having born on 14th August, 1989 and 08th April, 1993 respectively. The 1st accused was a farmer and the 2nd accused was unemployed. Ms M. Savou, Duty Solicitor of the Legal Aid Commission represented the two accused.
3. The conviction was entered consequent upon their 'pleas of guilty' to the charge on 13th July, 2010 after this court too explaining to the accused the legal effects of their intended pleas including the resultant waiver of their rights and privileges at a criminal trial. Court was satisfied that the two accused fully comprehended the legal effects and that their pleas were voluntary and free from influence.
   
4. Summary of facts, as admitted by the two accused before tendering their respective pleas of guilt, revealed that the offence of 'Aggravated Robbery' was committed on one Munim Prasad, while he [Munim Prasad] was driving the passenger-transport bus bearing No. XX YYY on 09th April, 2010.
   
5. The two accused, who were related to each other by virtue of the 2nd being the nephew of the 1st, got into the last bus for the day around 6.30 p.m. to Navilaca from Nausori having waited long hours there on 09th April, 2010. As the bus reached its destination of Navilaca, the two accused did not get off although the rest of the passengers did. Upon enquiry by the driver-Munim Prasad, the two accused replied that they were getting off at Taci Junction. As the bus was plying towards Taci, the 1st accused having rung the bell approached Munim Prasad and offered some money as the bus fare. As the driver-Munim Prasad was driven to the process of transacting on the fare, the 1st accused dealt a blow right on the back of Munim Prasad's head with an iron-rod. The 2nd accused, who was following the 1st on board the bus, thereupon, took the money-box from the possession of driver-Munim Prasad. They then left the scene together.
   
6. The driver-Munim Prasad, 38, received lacerations in the left-forehead, right post-auricular area and right-occipital area, some of which were deep, according to the Medical Officer's Report. The injuries and the left-nostril were bleeding so much so that the vest and the towel, with which the head was covered, were soaked with blood. Munim Prasad felt a 'black-out', which was suggestive of a momentary loss of senses and consciousness soon after the receipt of the blow. It was miraculous that Munim Prasad was able to drive the bus safely to his house at Natogadravu after receipt of the injuries.
   
7. Ms Jojiana Cokanasiga, State Counsel, submitted that the case involved a well-planned robbery in that the two accused had waited in the town for the last bus to arrive at 6.30 p.m. on 09th April, 2010 in order to rob the driver on board. Ms Cokanasiga alluded in her submissions that the attack on the driver itself was planned-out in that it was carried-out under the pretext of paying the fare to the driver. Material revealed that they had got the iron-rod from one Ilatia Raisua, who was running a tyre-repair house, well before they boarded the bus. She drew the attention of court to the head-injuries suffered by the driver-Munim Prasad. It was her position that, as the 2nd accused was 17 years + 1 day as at the date of the offence, he (the 2nd accused) was not entitled to any special treatment affordable under the Juveniles Act. She, however, submitted that there were two previous 'findings of guilty' and 'orders' made thereon against the 2nd accused on 01st February, 2010 in respect of the 2nd accused. She said that the 2nd accused had been placed under Social Welfare Probation for three months relating to House-Breaking, Entering and Larceny upon such findings. Ms Cokanasiga, in the highest traditions of an Official Bar, conceded that there was no proof to support that the amount robbed was $ 300 and that she would accept the amount as $ 60 as given in the cautioned-interviews of the accused.
   
8. Ms Savou, appearing for the 1st and the 2nd accused made a strong plea in mitigation on behalf of both accused. She submitted that the very early guilty plea by both accused be considered substantially in their favour. She advanced the proposition that the early guilty pleas had originated from them due to their remorsefulness against their act of offence. Ms Savou further pleaded for forgiveness and applied for leniency in sentencing as they had now learnt the lessons and would not re-offend. She urged court to consider the ages of the two accused being 20 and 17 respectively, the fact that they were first offenders and that they should get the opportunity of reforming themselves. She was forceful and potent in her plea for non-custodial sentences in respect of both accused. In an attempt to make out a distinction in favour of the 2nd accused, she submitted that, he (the 2nd accused) was the nephew of the 1st accused and that traditional obedience to an adult has had made him contribute to the incident.
   
9. It is in this context that I direct myself to consider appropriate sentences on the two accused upon their convictions pursuant to their own pleas of guilt. In doing so, I am guided by the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree No 42 of 2009, which states:
   

'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 [the General Sentencing Provisions of the Decree].'

10. The objectives of sentencing, as set-out in Section 4 (1) of the Decree, are 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.

11. Section 4 (2) of the Decree further provides that in sentencing offenders, a court must have regard to:
    

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable guideline judgment;

(c) The nature and gravity of the particular offence;

(d) The offender's culpability and degree of responsibility for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) The offender's previous character;

(j) The presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for applying a particular sentencing option.

12. Section 4 of the Decree on 'Sentencing Guidelines', in my view, have been founded on the jurisprudential principle of 'balancing competing interests' of the offender, the victim and the society at large. Courts, in their judgements, have consistently considered that principle in giving effect to the purposes and objectives of sentencing under the Decree as well as under the corresponding provisions of previous legislation. I had the benefit of examining such judgements as guidelines in order to conform to the requirement of imposing the punishment, '...which is just in all the circumstances' on the two accused as prescribed by Section 4 (1) of the Decree.
    
13. Learned State Counsel, in particular, called in aid the recent judgement by His Lordship Justice Goundar in the case of State vs Mataiasi Bulivou Susu [2010] FJHC 226, with a view to enlighten court as to the current judicial approach to the offence of 'Aggravated Robbery' involving violence. His Lordship, upon a survey of authorities, found that organised gang robberies attract the sentence of 8-14 year imprisonment. This finding seems to have been persuaded by the dicta of their Lordships of the Court of Appeal in Sakiusa Basa vs. the State (Criminal Appeal AAU 24/2005), upholding the conclusions of Shameem J, which read:
    

'Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences should be considered aggravating features.

The sentence may be reduced where the offender has no previous convictions, has pleaded guilty and has expressed remorse.

This list of aggravating and mitigating features is by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case'

14. In the above case, Shameem J had chosen 8 years as the starting point to punish the offenders in a case involving robbery with violence. The Court of Appeal, whilst agreeing with Her Ladyship's decision as to the starting point of the sentence, stated that 'the learned Judge was justified in fixing her starting point at eight years on the basis of the overall offence'. The Court of Appeal further held that:
    

'Anyone who commits robbery with violence must expect an immediate sentence of imprisonment. This was a well planned attack carried out with weapons and a clear willingness to use violence. Since that offence, this appellant has committed another robbery. We do not interfere with the sentence ordered but we are constrained to add that the final sentence that the appellant has to serve is as short as it properly could be and we would not have interfered had a considerably longer term been ordered.'

15. His Lordship Justice Goundar in giving judicial effect to the victim impact under Section 4 (2) of the Decree observed in State v Susu (Supra) that:
    

'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.

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',

and picked up 6 years as the starting point as no physical injury was caused on the victim.

16. State vs Rokonobete and Others [2008] FJHC 226, which was referred to by His Lordship Justice Goundar in Susu's case (supra), has summarised the guiding principles in sentencing in cases involving robbery. They are:
    

'From these authorities, the following principles emerge. 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.'

17. His Lordship Justice Gates (as he then was) expounded on the victim impact resultant from robbery on taxi-drivers, who stand in close relationship and similarly circumstanced to bus-drivers as public transport providers, in State vs Charles Marvick. His Lordship adopted the pronouncement in Vilikesa v State [HAA 064/04;20.08.2004] which read:
    

'Violent and armed robberies of taxi-drivers are all frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. .....The risk of personal harm they take everyday by simply going about their business can only be ameliorated by harsh deterrent sentences that might instil in prospective muggers the knowledge that if they hurt or harm a taxi-driver, they will receive a lengthy term of imprisonment'

18. His Lordship Justice Gates reinforced the above ruling of Winter J. in the case of State v Patrick Fong [FJHC 722/05]as follows:

'Much has been said of attacks on taxi drivers. The court has concluded that the need for harsh deterrent sentences to protect taxi drivers, and the transport facility they provide for the public, far outweighs the personal mitigating circumstances of unthinking or alienated young men: Peni Raiwalui v The State (unreported) Suva Crim. App. No. HAA030.03S, 12 November 2003; Vilikesa Koroivuata v The State (unreported) Cr. App. HAA064.04S, 20 August 2004; State v Charles Marvick, (unreported) Suva Cr. Case No. HAC027.028.04S 19 October 2004.'

19. Moreover, Justice Gates authoritatively adopted Winter J.'s proposition in the above case in regard to suspended terms on the basis of following formulation:
    

'The appellant pleads that he is young first offender and that his sentence should be suspended. He is wrong. This was violent offending. It will only be in rare and exceptional circumstances that the court may be required to consider a suspended term of imprisonment for violent offending. The public need for deterrence will often be outweigh the personal needs of a young but violent first offender.

20. Rulings in above judicial precedents and analysis of provisions of the Sentencing and Penalties Decree sufficiently equip me to consider an appropriate punishment on the two accused, which is '...just in all the circumstances' as prescribed by Section 4(1) (a) of the Decree, having embarked, indeed, on an exercise of balancing competing interests among the two accused-persons, the victim and the society at large.
    
21. However, there exists an issue, which I think must be addressed, prior to the sentencing of individual accused. And, that is the apportioning of culpability between the two accused on the alleged basis of adult dominance arising from uncle-nephew relationship compelling the 2nd accused to contribute to the crime, as advanced by Ms Savou in her mitigation submissions.
    
22. The two accused were charged on the basis of 'joint enterprise' the legal principle of which is embodied in Section 46 of the Crimes Decree No 44 of 2009, which states that:
    

'When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.'

23. I find that the two accused had played their individual roles together after forming the common intention of prosecuting the unlawful act [purpose] of robbing Munim Prasad. Material does not permit me to conclude that the 1st accused had played a dominant role and the 2nd accused had unwittingly subjugated to such role of the 1st accused in consequence of the uncle-nephew relationship. Such a role of dominance, could not, in fact, have been in existence given the age difference only of nearly 3 1/2 years between the two. On the contrary, the two accused planned, executed and enjoyed the fruits of the crime on an equal footing. I accordingly reject the contention of the learned counsel and hold that the 1st and the 2nd accused have jointly committed the crime and they are equally culpable for the offence of 'Aggravated Robbery'.
    
24. In view of my conclusion above, I consider that aggravating factors surrounding the offence are common to the 1st and the 2nd accused and they ought to be applied with equal force against them. Accordingly, aggravating factors against both accused are:
    

"(i) You planned the act of aggravated robbery on Munim Prasad and acted in concert with each other;

(ii) You were armed with an iron-rod well ahead of executing the attack on Munim Prasad and used it as the weapon of offence;

(iii) You practised an act of deceit on Munim Prasad as being innocent passengers on board his bus;

(iv) You diverted his attention under the pretext of transacting on the bus fare;

(v) In the process you dealt a blow and caused injuries on the head of Munim Prasad;

(vi) Your act of offence could have the effect of endangering passers-by and other users of the road;

(vii) Your act of robbery was on the driver of a bus who was a public transport provider whose very nature of the job itself involved occupational risks;

(viii) You nearly endangered the life of the bus driver-Munim Prasad by your violent attack on his head."

25. My conclusion on applicability of the aggravating factors, as set-out above, leads me now to consider the nature of the imprisonment that ought to be imposed on the two accused. In her strong plea of mitigation, Ms Savou impressively pleaded that non-custodial (suspended) terms of imprisonment need be considered on the ground that the two accused were first offenders. In answering that submission, I would respectfully adopt the formulation by Winther J. as endorsed by His Lordship Justice Gates, as referred to in paragraph 19 above, as regards the issue of suspended sentence in a case involving violent offending and personal injury. I accordingly refuse the plea for suspended sentences in this case in respect of the two accused as the case does not qualify such a course of punishment.
    
26. I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule.
    
27. Having identified the nature of the imprisonment, I will now address the 1st and the 2nd accused in order to deal with mitigatory factors in their favour.
    

1st Accused-Vilkesa Tilalevu

"(a) You are 20 years of age, unmarried and a farmer by occupation. You studied upto Form 3 only and currently living with your elder sister as both your parents passed away by 2008. You had no record of previous convictions or bad character.

(b) You have been on remand from 13th April, 2010 to this date.

(c) You pleaded guilty to the charge at a very early stage. You repented over the offence and were remorseful.

(d) With your guilty plea, you saved the time of court, that of the officers of the State and witnesses; and, rescued the victim-Munim Prasad from the travails of a trial."

2nd Accused-Savenaca Mataki

"(a) You are 17 years of age, unmarried and at present works as a farmer by occupation. You studied upto Form 3 only and currently living with your parents. You had no record of previous convictions or bad character save the findings of guilty when you were a juvenile. This court will not consider them against you to reflect a bad character in the absence of particularised information before court.

(b) You had been on remand from 13th April, 2010 up until 14th May, 2010.

(c) You pleaded guilty to the charge at a very early stage. You repented over the offence and were remorseful.

(d) With your guilty plea, you saved the time of court, that of the officers of the State and witnesses; and, rescued the victim-Munim Prasad from the travails of a trial."

28. Mitigatory factors are same and it will be appropriate to apply them in common to ensure equity in respect of both accused. However, they are not capable of displacing the range of 8-14 year imprisonment set for the offence of 'Aggravated Robbery' as authoritatively held in judicial precedents referred to above. I accordingly proceed to determine the sentence on the two accused as follows.
    
29. (i) I take 8 year imprisonment, having regard to the young age of the two accused, as the starting point, which is the bottom-line within the range punishment.
    
    • (ii) I add 4 years for aggravating factors, as set out in paragraph 24 above, to reach the period of imprisonment at 12 years.
      
    • (iii) I reduce 4 years for the very early guilty plea and other ancillary factors in sub-paragraphs (c) and (d) of paragraph 27 and return to 8 years.
      
    • (iv) I reduce 6 months for previous good character.
      
    • (v) I reduce further 6 months for the period of remand.
      
30. In the result, I determine that a 7 year imprisonment in respect of each accused for the offence charged is '...just in all the circumstances of the case'. Accordingly, I order that the 1st Accused is punished with 7 year imprisonment; and, the 2nd accused is punished with 7 year imprisonment.
    

Acting in terms of Section 18(1) of the Decree, I further order that the 1st and the 2nd accused are not eligible for parole within a period of 4 years.

Priyantha Nawana
Judge
20.07.2010