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State v Tikoicina - Sentence [2019] FJHC 386; HAC231.2018 (2 May 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 231 of 2018

[CRIMINAL JURISDICTION]

STATE

V

USAIA TIKOICINA

SERUPEPELI DRAUNIMASI

Counsel : Mr. E. Samisoni for State

Mr. A. Chand for Accused

Sentenced on : 02 May 2019

SENTENCE

1. Usaia Tikoicina, you stand convicted of the offence of aggravated robbery contrary to section 311 (1) of the Crimes Act 2009 upon your plea of guilty. Your charge reads thus;

Statement of Offence

Aggravated Robbery: contrary to section 311 (1)(a) of the Crimes Act of 2009.

Particulars of Offence

USAIA TIKOICINA and SERUPEPELI DRAUNIMASI in the company of each other on the 2^nd June 2018 at Suva in the Central Division, robbed Elvin Sumit Sen of his Samsung Galaxy phone valued at $300, house keys and $10 cash, all to the value of $310 the properties of Elvin Sumit Sen.

2. The summary of facts you have admitted to are as follows;
   1. The Complainant (PW1) in this matter is Elvin Sumit Sen, 23 years old, contractor of Raiwasa.
   2. The Accused (A1) is Usaia Tikoicina, 21 years old, construction worker of Raiwasa.
   3. At around 3am on the 2^nd of June, 2018, PW1 was travelling in a taxi and got off at the Shalimar Street roundabout at Raiwasa. PW1 then walked towards the New World Supermarket Bakery. On the way there, PW1 was attacked by A1 and Serupepeli Draunimasi.
   4. PW1 was assaulted by A1 whilst Serupepeli Draunimasi searched his pockets.
   5. As a result of the above assaults, PW1 received various injuries which are reflected in his Medical Report dated 2^nd June, 2018. A copy of the said Medical Report is annexed as Annexure 1.
   6. A1 and Serupepeli Draunimasi then stole a Samsung Galaxy mobile phone valued at $300.00 and $10.00 cash from PW1.
   7. A1 and Serupepeli Draunimasi then fled the scene. Afterwards, the Police arrived to assist PW1 and he described to them the physical appearance of A1 and Serupepeli Draunimasi including the type of clothing they were wearing.
   8. The Police then searched for A1 and Serupepeli Draunimasi and they were able to apprehend them. A1 and Serupepeli Draunimasi were found at Raiwasa Street along Ratu Dovi Road. Both A1 and Serupepeli Draunimasi were searched and PW1’s Samsung Galaxy mobile phone and $10.00 cash was found on them. They were both escorted to the Grantham Road Police Post in Raiwaqa.
   9. On the 3^rd of June, 2018, A1 was interviewed under caution to the English language by DC 3648 Deven Swami at the Nabua Police Station whee he voluntarily admitted to the allegation that he and Serupepeli Draunimasi on the 2^nd June, 2018 at around 3am at Shalimar Street robbed te complainant of his mobile phone and cash.
   10. According to his Record of Interview, A1 was sitting at the New World Supermarket Bakery with Serupepeli Draunimasi when he saw PW1 approaching them. A1 then punched PW1 on the mouth whilst Serupepeli Draunimasi searched PW1 and took out PW1’s mobile phone and $10.00 cash. A1 was shown PW1’s mobile phone and $10 cash during his interview and he confirmed that those were the same items he had robbed PW1 of on the night of the incident. A copy of the said Record of Interview is attached as Annexure 2.
       
3. The maximum sentence for the offence of aggravated robbery contrary to section 311(1) of the Crimes Act is 20 years imprisonment. The tariff for this offence is an imprisonment term between 8 to 16 years. [Wallace Wise v The State, Criminal Appeal No. CAV 0004 of 2015; (24 April 2015)]
   
4. Explaining the aggravating circumstances of the offence of robbery with violence under the now repealed Penal Code Goundar J said in the case of State V Rokonabete [2008] FJHC 226 that;

“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.”

5. Section 4(1) of the Sentencing and Penalties Act outlines the following as the purposes of which a sentence should be imposed;

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

(b) to protect the comm from ofom offenders;

(c) to deter offenor other ps fons from committing offences of the same or sior similar nature;

(d) to establinditions so that that ilitaof offenders may may be promoted or facilitated;

(e) tnify that that the court aurt and the community denounce thmission of such offences; or

(f) any comy combination os these purposes.

6. In sentencing you, I consider it necessary to signify that this court and tmmunity denounce your conduconduct. However, I would also bear in mind the fact that you are a young first offender and that therefore, I should facilitate rehabilitation.
   
7. I would select 8 years imprisonment as the starting point of your sentence.
   
8. I would take into account the following as aggravating circumstances in order to add 02 years to your sentence;
   1. the nature of force you used on the victim; and
   2. the fact that the offence was committed around 3.00am in the morning.
      
9. You are 22 years old. I consider the following as mitigating factors to deduct 03 years of your sentence;
   1. You are a young first offender;
   2. You are remorseful; and
   100. You cooperated with the police.
        
10. After the above adjustments your sentence is an imprisonment term of 07 years. Now the question is about the appropriate discount to be given in view of your guilty plea. Your plea was taken for the first time on 26/07/18 and you pleaded not guilty to the charge against you. Your co-accused pleaded guilty. That time you were represented by a private practitioner. Later on, you decided to seek the assistance of the Legal Aid Commission. Soon after the Legal Aid Commission came on board on your behalf, it was indicated to court that you want to change your plea.
    
11. Your counsel urged that the guilty plea you entered should be regarded as an early guilty plea for the purpose of sentencing because you initially pleaded guilty due to the fact that you did not receive proper legal advice. The prosecutor informed court that he would not object to the said request of your counsel. That was the right thing to do. Given your demeanour when you initially pleaded not guilty in the presence of your previous counsel, I did form the view at that time that you were under some form of duress. In the circumstances, I have decided to consider your guilty plea as an early guilty plea for the purpose of sentencing.
    
12. Therefore, in view of your early guilty plea I would grant you a discount of 02 years and 04 months which is equivalent to one-third of your sentence.
    
13. Accordingly, I sentence you to an imprisonment term of 04 years and 08 months. I order that you are not eligible to be released on parole until you serve 03 years of your sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Act.
    
14. As I have applied the two-tier approach to determine your sentence, the above reasoning process that led to your final sentence clearly indicate why your final sentence is below the applicable tariff.
    
15. Section 24 of the Sentencing and the Penalties Act reads thus;

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

16. It is submitted that you are in custody in view of this matter since 02/06/18. Accordingly, you have spent a period of 11 months in custody. The period you were in custody in relation to this case shall be regarded as a period of imprisonment already served by you in view of the provisions of section 24 of the Sentencing and Penalties Act.
    
17. In the result, you are sentenced to an imprisonment term of 04 years and 08 months with a non-parole period of 03 years. Considering the time spent in custody, the time remaining to be served is as follows;

Head Sentence – 03 years and 09 months

Non-parole period – 02 years and 01 months

18. Thirty (30) days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for the Accused.