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State v Lutunatabua [2010] FJMC 66; Criminal Case 336 of 2010 (6 July 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 336/10

BETWEEN

THE STATE

AND

JOSEFA LUTUNATABUA

SENTENCE

1. You, Josefa Lutunatabua are to be sentenced upon pleading guilty to the following counts;
   
   1. Robbery with violence contrary to Section 293(1)(b) of the Penal Code
      
   2. Unlawful use of Motor vehicle contrary to Section 292 of the Penal Code
      
   3. Driving a motor vehicle without a driving licence contrary to Sectio 56(3)( a), (6) and 114 of the Land Transport Act
      
   4. Driving a motor vehicle when not covered under the insurance of third party risks contrary to Section 4 of the Motor vehicle third party insurance Act.
      
2. The maximum sentences for the respective offences are as follows;
   

1st count - life imprisonment

2nd count - imprisonment for six months or to a fine of one hundred dollars, or to both such imprisonment and such fine

3rd count - Fine of two hundred dollars and/or 30 days imprisonment

4th count- fine not exceeding $400 or to imprisonment for a term not exceeding one year or to both such fine and imprisonment

3. In this case it was revealed that you with the others on the 16th July 2009 have assaulted and robbed the complainant when he was having lunch with his girl friend inside his van at Lomolomo beach. You have assaulted the complainant and have robbed items all to the value of $1598. You with others have tied the hands and legs of the complainant and his girl friend using a brown tape and have driven away the complainant's vehicle.
   
4. The vehicle had been later found, abandoned at the Queens High Way and only the wrist watch of the complainant was recovered.
   
5. Judge Paul K. Madigan stated in Manoa Baleinakeba V The State Criminal Appeal No HAA 008 of 2010,
   

"A tariff of 4 to 8 years may have at one time been an appropriate tariff, but it is certainly no longer. In adopting the dicta of the Fiji Court of Appeal in Basa's case CA AAU24 of 2005 the Fiji Courts are now following the English line of cases for Robbery with violence and not the more lenient New Zealand authorities. In the High Court the tariff is more within the range of 10 to 15 years, and given the jurisdictional restraints of the Magistrate's court, I would venture that the proper tariff there now should be 7 to 10 years."

6. In this case I pick my starting point for the first count as eight years. For the second, third and fourth counts I decide to impose only fines.
   
7. It appears that you have created so much of terror in the minds of the complainant and his girlfriend and have subjected them to utter violence. The offence is committed during the day time and in an isolated place. Obviously this type of violent actions creates an insecure environment for the members of the public. The court has a duty to secure the protection of the members of the society, for them to engage in their peaceful activities.
   
8. I have observed the following aggravated features in this case;
   
   1. You have committed this with others
      
   2. Personal violence is used
      
   100. You have tied hands and legs of the victims preventing them from resisting violence and making them more vulnerable
        
   4. Items worth of substantial amount was stolen and only the wrist watch is recovered.
      
9. The court has to consider the prevalence of violent robberies in the society when sentencing in cases of this nature. Further the court has a duty to send a stern message to the society to make a deterrent effect.
   
10. For the aggravating circumstances I enhance the sentence by 12 months.
    
11. In mitigation you said that you seek forgiveness and you said that you committed the offences since you didn't have money. Further you said that " what ever sentence you give, I will be able to cope with that"
    
12. You did not say any thing apart from that. However it appears you are still at your young age. At the same time appropriate punishments are imposed on offenders, the court has a duty to give them an opportunity to reform themselves.
    
13. You pleaded guilty at the very outset saving the time of the court. Further you have admitted that you have 42 previous convictions for similar offences and it appears that you are not a stranger to the criminal administration system. You have committed these offences during the suspended terms in four cases of burglary and larceny in dwelling house. However I decided not to activate those sentences considering your young age and the early guilty plea.
    
14. Further for the mitigatory circumstances I reduce the sentence for the first count by 6 months.
    
15. Accordingly I impose the sentences in the following manner;
    
    1. 1st count – eight years and six months
       
    2. 2nd count - hundred dollars fine and in default 10 days imprisonment.
       
    3. 3rd count - hundred dollars fine and in default 10 days imprisonment.
       
    4. 4th count - 200 dollars fine and in default 20 days imprisonment
       
16. The default sentences should run concurrently to the sentence of the first count.
    
17. Further I order that you are eligible for parole after 72 months.
    

28 days to pay the fine / to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
06.07.2010