High Court of Fiji

“.....[38] In Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) the complainant, aged 18 years, after finishing off work was walking on a back road, when he was approached by the two accused. One of them had grabbed the complainant from the back and held his hands, while the other punched him. They stole $71.00 in cash from the complainant and fled. The Court of Appeal remarked

‘[11] Robbery with violence is considered a serious offence because the maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in v The State CrimAppeal No.AAU0024 of 20of 2005 (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should bed onish authorities rather than those of New Zealand,land, as had been the previous practice, bce, because the sentence provided in Penal Code is similar to that inish lesh legislation. In England the sentencing range depends on the forms or categories of robbery.

[12] The leading English authority on the sentencing principles and starting points in cases of street robbery or mugging is the case of Aey General’s Refe References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the sled ‘mobile phoe phones’ judgment). The particular offences dealt in the judgment were characterized by serious thref violence and by the use of weapons to intimidate; it was the element of violence in the cthe course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, and further where the maximum penalty was life imprisonment:

• The sentencing bracket was 18 months or 5 years, but the upper limit of 5 years might not be appropriate ‘if the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed’.
• An offence would be more serious if the victim was vulnerable because of age (whether elderly or young), or if it had been carried out by a group of offenders.
• The fact that offences of this nature were prevalent was also to be treated as an aggravating feature.

[39] The sentencing tariff for street mugging was once again discussed in Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) where the complainant was going home at about 4.30 p.m. when the appellant with another person had called him and asked for money and when told that he had no money, the appellant had hit him with a knife and the other had assaulted him with an iron rod. After assaulting the complainant the appellant had taken $20 from him and run away. The Court of Appeal having discussed Raqauqau and other decisions said as follows.

‘[35] The adoption of the tariff in Wise (S pra) not seem to be appr appropriate to the present case as it does not come within the nature of a home invasion category of aggravated robbery and is a situawhichd come within the type of street mugging cases. Ces. Considonsidering the objective seriousness of the offending and the degree of culpability, the harm and loss caused to the complainant it would be appropriate to follow the sentencing pattern suggested for instances of street mugging

[40] Again the Court of Appeal in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) dealt with a case of street mugging in the following terms.

‘[15] The learned single Justice of Appeal, in giving leave to appeal, distinguished facts in Wallace Wise&#1upra)upra), which involved a home invasion as opposed to the facts in Raqauqau v State#/b> [2008] FJCA 34; AAU0100.2007 (04 August 2008), .

The range of sentence for that type of offence was set at eighteen months to five years by the Fiji Court of A in&#b>Raqauqau’s case (supra).

‘[19] Upon a consideratioration of the matters, as set-out above, I am of the view that the learned Magistrate had acted a upon wrong principle when he applied the tariff set for an entirely different category of cases to the facts of this case, which involved a low-threshold robbery committed on a street with no physical violence or weapons. When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.

[16] The facts of this case clearly depicts that this is a case of street mugging. Therefore, in my opinion the appropriate tariff in the instant case should be between 18 months to 5 years imprisonment.

[17] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“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.”

[18] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, including the maximum sentence prescribed for the offence, the nature and gravity of the offence and the degree of culpability, Laisiasa, I commence your sentence at 18 months imprisonment for the offence of Aggravated Robbery.

[19] The aggravating factors are as follows:

(i) The frequent prevalence of these offences in our society today. This has created a sense of fear amongst the community.

(ii) You and your accomplices paid scant regard to the safety and security of the complainant, who was returning home after his employment.

(iii) You and your accomplices committed this offence in the late hours of the night.
(iv) I find that there was some amount of pre-planning or pre-meditation on you and your accomplice’s part in committing this offence.
(v) The complainant had sustained injuries during the incident. The Medical Examination Report confirms that the complainant had suffered a small laceration on his right lower eye lid.

[20] Laisiasa, in mitigation, you have submitted as follows:

(i) That you are a first offender and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.

(ii) You have fully cooperated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.

(iii) Most of the stolen property was recovered with your assistance. Only the complainant’s Samsung Galaxy A50 mobile phone and thermometer were not recovered.

(iv) You have submitted that you are truly remorseful of your actions and you have assured Court that you will not re-offend.

(v) You have apologized to the complainant who confirmed that he accepts your apology.

(vi) You have paid compensation in the sum of $200.00 to the complainant.

(vii) That you have entered a guilty plea prior to the commencement of the trial.

[21] Considering the aforementioned aggravating factors, Laisiasa, I increase your sentence by a further 5 years. Now your sentence for the offence would be 6 years and 6 months imprisonment.

[22] Laisiasa, I accept that you are a person of previous good character and that you have fully co-operated with the Police in this matter and also the fact that most of the stolen property was recovered with your assistance. I also accept your remorse as genuine and the fact that you have apologized to the complainant and also paid compensation to him. Accordingly, considering these mitigating factors, I deduct 4 years and 6 months from your sentence. Now your sentence would be 2 year’s imprisonment.

[23] Laisiasa, I accept that you entered a guilty plea during the course of these proceedings. However, it must be noted that the said plea was entered on the first date on which this matter was fixed for trial. Nevertheless, in doing so, you saved precious time and resources of this Court. For your guilty plea I grant you a further discount of 12 months.

[24] Accordingly, Laisiasa I sentence you to a term of 1 year’s imprisonment.

[25] The next issue for consideration is whether your sentences should be suspended.

[26] Section 26 of the Sentencing and Penalties Act provides as follows:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(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,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[27] Laisiasa, I am aware that you are only 21 years of age [Date of Birth 31 August 1999] and as such a young offender. You are said to be in a de-facto relationship and your de-facto partner is only 19 years of age.

[28] Your father Iliesa Nakarawa is employed as a Chief Mate on passenger ships registered under South Island Shipping Services. A letter has been tendered to Court by the Director of the said Company stating that the company is willing to employ you on board one of their vessels upon the finalization of this case. It is also stated in the letter that the Company will undertake to look after your welfare and to ensure that you stay away from your peers, who happen to be a bad influence on you.

[29] However, Laisiasa, I have already granted you substantial discounts for the mitigating factors as stated above. Therefore, considering the nature and gravity of the offence and the degree of culpability, I am of the opinion that your sentence should not be suspended any further.

[30] Section 24 of the Sentencing and 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.”

[31] Laisiasa, you were arrested for this case since your arrest on 16 November 2019 and granted bail on 19 February 2020. Thereafter, I remanded you into custody on 23 November 2020. You had been in custody until today. The time you have been in custody is a total period of approximately 3½ months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that the period of 3½ months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[32] In the result, Laisiasa, you are sentenced to a term of 1 year’s imprisonment. Considering the time you have spent in remand, the time remaining to be served by you would be 8½ months imprisonment.

[33] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 4^th Day of December 2020

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : MIQ Lawyers, Barristers and Solicitors, Suva.