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State v Matasau [2011] FJMC 4; Criminal Case 2181 of 2010 (4 January 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 2181 of 2010

STATE

v.

ISIRELI MATASAU

For Prosecution: Cpl. Lutunauga
Accused: Present. In Person

SENTENCE

1. You, ISIRELI MATASAU are here, today to be sentenced on admission of guilt on your own accord for three counts namely: "Robbery with Violence", an offence punishable under sec. 310(1)(a)(i) of the Crimes Decree 2009, "Damaging Property" an offence contrary to sec. 369(1) of the Crimes Decree 2009 and "Resisting Arrest" an offence contrary to sec. 277(b) of the Crimes Decree 2009.
   
2. On 13th December 2010, when you were produced before the Court from the police custody, you informed that you are pleading guilty to all charges. All charges were read and explained to you in your preferred language and you waived your right to be represented by a counsel. You elected Magistrate's Court trial. When inquired by the Court you informed that you are pleading guilty on your own free will. I am satisfied that your plea for all charges is an unequivocal plea.
   
3. According to the summary of facts (which you have admitted), on 09th December 2010 at about 2130 hours you have assaulted PW-1 who was returning after buying groceries from a shop and stole $100 cash from the victim. PW-2, who was waiting in his vehicle waiting for PW-1 to return, witnessed the incident and had come in aid of PW-2. You then had punched the windscreen of the vehicle driven by PW-2 and caused $480 damage. PW-3 who was going to the shop witnessed the robbery and you damaging the vehicle, had assisted both PW-1 and PW-2 to come to the Police Station.
   
4. After reporting this incident to the police, PW-3 had gone in search of you with the police as PW-3 had recognized you as a youth in her neighbourhood. When PW-4 approached to arrest you have pushed him and had run away but with the aid of PW-5, PW-4 managed to catch you. You then have had thrown punches on PW-4.
   
5. Maximum sentence prescribed for the offence under Sec. 310(1)(a)(i) is "15 years imprisonment' and for Damaging Property is '02 years imprisonment'. Maximum sentence for Resisting Arrest is for '05 years imprisonment'.
   

Seriousness of the offence and aggravating factors

6. According to Justice Goundar in The State v. Sakiusa Rokonabete and three others (Criminal Case No. HAC 118 of 2007 Suva, 15th September 2008), aggravating factors, such as, Group offending, planned acts, vulnerable victim, value of the items taken and using of weapons, would invariably invite for a higher starting point in sentencing. In The State v. Timoci Delana [HAC 190 of 2008, 108, 113 and 126 of 2009 on 01st February 2010], Justice Goundar emphasised the above-mentioned facts as aggravating factors.
   
7. According to the Court of Appeal Judgment by Sheppard JA, Gallen JA and Ellis JA in Singh v. State {[2004] FJCA 8; AAU0008.2000S (19th March 2004)}, "'robbery with violence' either actual or threatened will always give rise to serious consequences". Following factors have considered as guidelines in sentencing.
   
   1. The extent of the loss arising from the criminal action.
   2. Vulnerability of the victim and the effect of them and their lives.
   3. Subsequent behaviour.
   4. Previous criminal record of the offender.
   5. Remorse (remorse expressed afterwards how genuine cannot carry as much weight)
      
8. Number of decisions of court have emphasized that it is appropriate to follow English guidelines for the offence of "Robbery with Violence" since both English and Fijian system carries 'life imprisonment' as the maximum penalty. (Basa v. State [2006] Cr. App. AAU. 24/05, 24 March 2006, State v. Vakararawa [2008] FJHC 114; HAC047.2006, 3 June 2008). In R v. Turner 61 Cr. App. R. 67, it was held that "previous good character is not a strong mitigating factor although repeated offenders should be sentenced more heavily than first offenders".
   

Repeat offender

9. In Viliame Cavuilagi v. State, Crim. App. HAA 0031 of 2004 Winter J has made following comments regarding a repeat offender.
   

"Repetitive, recidivist of offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society's needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law-abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime".

10. According to Goundar J in State v. Vakararawa [2008] FJHC 114, "the dominant factor in assessing seriousness of any type of robbery is the degree of force used or threatened".
    
11. Sentencing Guidelines are now clearly set out in Sentencing and Penalties Decree 2009. According to sec. 4:
    

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(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.

12. Under the repealed Penal Code, offence of 'Robbery with Violence" carried a maximum penalty of 'Life Imprisonment' whereas an offence of 'Robbery" under the Crimes Decree has 15 years Imprisonment.
    
13. Considering these facts I set my starting point of sentencing for 04 years imprisonment.
    
14. You plead guilty to the charge. According to a very recent Judgment delivered by Justice Thurairaja in Josua Natakuru Nalatu v. The State [Crim. Appeal No. HAA 058 of 2010], on 09th December 2010:
    

"There is no hard and fast rule, that the early guilty plea should be given 1/3 discount. As I discussed in many other cases previously the deduction is completely in the hands of the trial judges. They may consider the facts of the case and all other circumstances and decide the period of deductions".

15. To reflect the guilty plea I reduce 18 months from your sentence.
    

Aggravating facts

16. Following facts are considered as aggravating facts.
    
    1. Caused injuries to an unarmed victim and stole $100.
    2. No provocation.
    3. Damage to the vehicle of PW-2
    4. Assaulting a Police Officer.
       
17. You said that you damaged the vehicle because the driver tried to bump you. However, according to the medical report, you have only received a laceration on your face as a result of the grapple with the Police.
    
18. Considering these aggravating facts, I add 06 months to your sentence.
    

Mitigating facts

19. You are 2o years old and worked as a casual worker at Suva Warf. You earn $180-200 per week. You said that you intent to get married by the end of the month. You asked for a non-custodial sentence and asked for forgiveness of the Court.
    
20. To reflect the mitigation and the period you spent in remand for this case I reduce one year from your sentence.
    
21. You sentence now stands for 02 years imprisonment. You have 03 previous convictions and one of them are for 'Robbery with Violence' you have committed whilst you were a juvenile. When you commit this offence you were under a bound-over over imposed by Suva Magistrate's Court on 01st June 2010 for 12 months to maintain good behaviour.
    
22. Even though I do not take those facts to decide your sentence, I take those facts in to consideration to decide whether it is appropriate for me to give you a non-custodial sentence.
    
23. Considering your tendency to disregard the mercy shown by the Court, I order you serve one year out of your two year sentence imprisoned up to 13th December 2011 and I proceed to suspend the remaining one year for 05 years.
    
24. Suspended sentence imposed upon you will commence as soon as you are released from prison that is from 13th December 2011. This suspended sentence is effective till 13th December 2016.
    
25. If you commit any other offence during the period of 13th December 2011 to 13th December 2016 and found guilty by the Court, you are liable to serve another one year imprisonment.
    
26. 28 days to appeal.
    

On this Tuesday the 04th day of January 2011

Kaweendra Nanayakkara
Resident Magistrate