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State v Rokoua - Judgment [2010] FJHC 541; HAR010.2010 (26 November 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL MISCELLANEOUS NO. HAR 010 OF 2010

BETWEEN:

STATE

AND:

LAISENIA ROKOUA

Counsel: For the State - Mr. Kaisamy
For the Respondent - Ms. Lemaki
(As amicus curiae)

Date of Hearing: 25.11.2010
Date of Judgment: 26.11.2010

JUDGMENT

1. High Court using the supervisory power on the Magistrates Court called for the trial file for scrutiny. There it appeared the sentence is improper. Both the state and the Accused Respondent were requested to make submissions.

2. Since the Accused Respondent was unrepresented, the Court requested a Counsel from Legal Aid Commission to appear as amicus curiae.

3. The Accused Respondent was charged in the Magistrates Court as follows:

FIRST COUNT
Statement of Offence [a]

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

Particulars of Offence [b]

FILIMONE VETAU and LAISENIA ROKOUA on the 27th day of January 2007 at Labasa in the Northern Division, robbed AMKA PRASAD s/o RAM BUKSH of a cash of $50.00 and a Alcatel mobile phone valued at $120.00 to the total value of $170.00, and at the time of such robbery did use personal violence to the said AMKA PRASAD s/o RAM BUKSH.

SECOND COUNT
Statement of Offence [a]

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

Particulars of Offence [b]

FILIMONE VETAU and LAISENIA ROKOUA on the 27th day of January 2007 at Labasa in the Northern Division, unlawfully and without the colour of right but not so as to be guilty of stealing took to their own use motor vehicle registration number LT 1364 the property of AMKA PRASAD s/o RAM BUKSH.

4. The Accused Respondent plead guilty to the charges on the 8th July 2010, and admitted the facts of the case.

5. The Magistrate sentenced the Accused Respondent as follows;

"I convict the accused on his plea.

The maximum sentence is life imprisonment. The Magistrates Court has jurisdiction to give 10 years.

The tariff is 4 – 7 years.

The maximum sentence for the 2nd count is 3 months imprisonment or 100 FJD fine.

The Accused pleaded guilty on the date of the hearing when all the witnesses are present.

The offence committed in 2007.

Accused is a 1st offender.

Consider the mitigation.

Tempted by a friend.

Although Accused pleaded guilty is not entitled for a substantive discount.

Considering Accused's previous good behaviour accused to be given a substantial discount.

According to the facts admitted by the accused he has asked the driver to stop at a particular place.

Alcatel mobile phone given to this accused.

After the incident drank liquor from the money got from the victim – Joint Enterprise.

I consider that a sufficient aggravating factors to enhance the punishment.

I start with 4 years of imprisonment as it is the least point in tariff.

I discount 2 years on plead guilty, previous good behaviour and mitigation.

I enhance by 2 years on the above aggravating factors,,

I impose 4 years imprisonment.

I consider section 15 (1) (d) of the sentencing and penalties decree.

I am of the view that a deterrent punishment is necessary to denounce the disapproval of the society of these offences.

However, considering the new provisions, I am of the view that accused be sentenced for 4 years imprisonment and the accused to serve 2 years in the prison and 2 years in the community as a suspended term.

I suspend the balance 2 years for 2 year period.

9 months non-parole.

I fine the accused 100 FJD for count.

1 month in default.

To run concurrently.

28 days to pay.

28 days to appeal.

Items recovered to be returned to the complainant.

Sgd:

Resident Magistrate"

6. Now I consider the relevant section of Sentencing and Penalties Decree 2009. Section 26 (2) (b) states as follows:

"2. A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence:

b) does not exceed 2 years in the case of the Magistrates Court."

7. As per the above Section, the Magistrate has no power to suspend any sentence above 2 years imprisonment. The sentence imposed on the Accused respondent was 4 years. Fully or partially suspending a sentence by a Magistrate, above 2 years is not permitted by the law. Therefore, I vacate the sentence imposed on the Accused Respondent.

8. This case can be sent back to the Magistrate for sentencing but considering the delay and inconvenience to the Accused, I exercise powers vested with High Court and proceed to impose the following sentence on the Accused Respondent.

9. Accused Respondent was charged for Robbery with Violence on a taxi driver and Unlawful Use of Motor Vehicle punishable under section 293 & 292 of the Penal Code respectively. The charge sheet is already produced at paragraph 3 of this judgment.

10. The Accused Respondent had admitted the following summary of facts at the Magistrates Court.

"On the 27th day of January, 2007 at 4.45p.m. at Tuatau Housing, Filimone Vetau (Accused-1) 23 years, unemployed and Laisenia Rokoua (Accused-2) 24 years, Carpenter both of Naravuka, Seaqaqa robbed Amka Prasad s/o Ram Buksh (victim) 63 years, taxi driver of Vunivau, Labasa of $50.00 cash and a Alcatel mobile phone valued at $120.00 all to the total value of $170.00 the property of (victim) and also drove away the victim's taxi registration number LT 1364 without his consent.

On the above date and time victim was operating taxi around Labasa area. At about 4.30p.m. the victim whilst on his way to Labasa town he was approached by the two Accused at New World Supermarket. (Accused – 1) asked the victim to drop them to Tuatua. Victim agreed and the two Accused boarded into the taxi. Upon arrival at Tuatua (Accused -2) asked the driver to stop as (Accused-2) was sitted beside the driver. As the victim stopped the taxi (Accused-1) got off the taxi and placed the pen knife on the neck of the victim and also took $50.00 cash from him and also pulled the victim out of the taxi and (Accused-1) also drove away the taxi. Upon all the incident (Accused-1) gave the Alcatel mobilefone to (Accused-2) and also (Accused-2) joined (Accused-1) in drinking liquor which they bought from the money of the victim

Recovery:

Alcatel mobilefone was recovered from the Accused-2."

11. Now I consider the tariff for the offence of Robbery with Violence. In State vs Elia Manoa Criminal Case No. HAC 108 of 2009 & HAC 61 of 2010 Justice Goundar had imposed 10 years imprisonment. In State v Raymond Johnson HAC 120 of 2008 Justice Goundar commenced the sentence at 8 years and imposed 10 years imprisonment. In State vs Rasaqio (2010) FJHC 287 Justice P Madigan had imposed 9 years imprisonment.

12. Moreover, the tariff for robbery with violence was set out in the case of Basa v State [2006] FJCA 23; AAU0024.2005 (24 March 2006) where the Court of Appeal amongst other things quoted:

"Considering these authorities, the Fiji Court of Appeal clearly considers the New Zealand guidelines for Robbery with Violence to be of particular relevance for Fiji.

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, 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."

Hence the appropriate tariff for the current matter should range from 4 – 7 years imprisonment.

13. In case of Namudu v State [2010] FJHC 53; HAA016.2009 (23 February 2010) his Lordship Justice Goundar when delivering on his sentence reflected on the fact that the appellant was fortunate that the Magistrate did not take into consideration that the attack was committed on a public transport provider. His Lordship also quoted from the case of Koroivuata v the State to reflect on the seriousness of the offence.

"Violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. Taxi drivers are particularly exposed to the risk of robbery. They are defenceless victims. The risk of personal harm they take everyday by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt a taxi driver they will receive a lengthy term of imprisonment."

14. In the case of State Prosecution v Tilalevu [2010] FJHC 258; HAC081.2010 (20 July 2010) a case similar to the present matter whereby a bus driver was robbed the learned judge referred to the case of Vilikesa v State [HAA 064/04; 20.08.2004] and quoted:

"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 instill in prospective muggers the knowledge that if they hurt or harm a taxi-driver, they will receive a lengthy term of imprisonment."

The learned Judge sentenced the two accused to 7 years imprisonment.

15. In the case of State v Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010) the learned Judge amongst other things referred to the guidelines for robbery with violence provided in the case of State v Rokonabete & Ors. [2008] FJHC 226;

"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."

16. Considering all, I commence the sentence at 7 years imprisonment.

17. Now I consider the aggravating factors.

1. Accused Respondent committed the offence on a taxi driver.

2. The victim was 63 years old.

3. The Accused Respondent drove the taxi away from the taxi driver.

4. The Accused Respondent robbed money from the taxi driver, which may be the earning of the entire day.

Considering all, I increase the sentence by 2 years. Now the sentence is 9 years imprisonment.

18. Now I consider the mitigating circumstances.

a) You are 1st offender.

b) You pleaded at very early stage of the trial.

c) The Accused Respondent is remorseful.

d) The Accused Respondent submitted in this Court, that he promise that he will never commit an offence in the future.

Considering all, I reduce 2 years. Now your sentence is 7 years imprisonment.

19. I must place it as record that whoever commits an offence against the member of the public transport system cannot expect any leniency or mercy from the Court, because they play a vital role in the mobility of the public at large.

20. Now I consider the sentence on unlawful use of motor vehicle Section 292 of the Penal Code states as follows:

"Any person who unlawfully and without colour of right, but not so as to be guilty of stealing, takes or converts to his own use or to the use of any person, any draught or riding animal or any vehicle or cycle, however propelled, or any vessel, is guilty of a misdemeanour, and is liable to imprisonment for six months, or to a fine of one hundred dollars, or to both such imprisonment and such fine."

21. Considering the nature of the offence, your aggravating factors and mitigating circumstances I impose $100 fine. If you don't pay, you will be serving 1 month imprisonment in addition to your above sentence.

22. Section 18 (2) of the Sentencing & Penalties Decree states as follows:

"If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1)."

I leave the Accused Respondent to earn his early release under the rules & regulations of the Prison Authority. If the Accused Respondent behaves well he can earn his discharge earlier.

23. 30 days to appeal.

S. Thurairaja
JUDGE

At Labasa

26th November, 2010