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State v Nabaninivalu [2012] FJMC 171; Criminal Case 169.2012 (16 July 2012)

IN THE MAGISTRATE'S COURT
AT SUVA, FIJI,

MAGISTRATES COURT CRIMINAL CASE HAC NO; 169/2012

BETWEEN:

THE STATE
PROSECUTION

AND:

ERONI NABITU NABANINIVALU
1ST ACCUSED PERSON,

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Ms. Vinti Prasad for the Prosecution,
Accused in person,

Date of Sentence: 16th day of July 2012.

SENTENCE

1. You ERONI NABITU NABAINIVALU were charged with another for the offence of 'Aggravated Robbery', which is punishable under Section 311 (1) (b) of the Crimes Decree No 44 of 2009, entails a punishment up to 20 years of imprisonment.
   
You pleaded guilty for this offence on your free will on the 22nd day M12. Having satisfied that you fully comprehended the effectffect of your plea of guilty and made it on your free will and voluntarily without any condition. I now convict you for the offence of 'Aggravated Robbery', which is punishable under Section 311 (1) (b) of the Crimes Decree No 44 of 2009.

3. The summery of facts which were read out in the open court and admitted by you, revealed that you have committed this offence together with another accomplice at Bailey Gas Station, Jerusalem Road, Nabua on the 12th day of May 2012 around 5.30 p.m. You and your accomplice entered into the said Gas Station armed with a cane knife. You then threatened Mr. Jithendra kumar who is a gas station attendant with death. You and your accomplice then went on searching money and ransacked the office of the gas station and stole 1x Ink Mobile phone valued at $160, 1x E machine laptop valued at $1800, and cash of $ 1575 all to the total value of $ 3535.40 therein. Upon your subsequent arrest, you admitted that you had planned to rob the Gas station and committing this crime.
   
4. This is a pre planned gang robbery committed on Gas Station attendant at the Gas Station. Justice Goundar held in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010) that "The victims were vulnerable by virtue of their employments. They are always exposed to risk of harm because they provide services to the public and they are in possession of cash earnings. For these reasons, an attack on the public transport providers and employees of service stations must not be condoned. Such attacks must be denounced. Otherwise, the public will be deprived of essential services if the providers cease to operate these services because of fear of becoming victims of crime". The judicial precedent in State v Mataiasi Bulivou Susu (supra) is a precise indication of the resentful approach of the Judiciary in sentencing on the robberies committed on the public service providers during their working hours.
   
5. You used a cane knife to threaten the Victim and then carried out this heinous crime without any remorse. This dreadful experience and the trauma that the victim has encountered during this incident undoubtedly will hunt him in rest of his life. The negative impact of this crime does not only affect the victim himself, but also it will definitely affect the entire service providers who expose to the vulnerability due to the nature of their working scope.
   
6. The learned State counsel for the prosecution submitted a detailed sentencing submission where she extensively submitted the applicable tariff limit for the offence of pre planed organized gang robberies. Having submitted such, she stated that the aggravating factors in this offence are that;
   
   1. The accused is adversely recorded with a total of 15 previous convictions. Which I do not consider as an aggravating circumstance of this offence however I do not consider the accused person's previous unblemished character as a mitigating factor for his favour.
      
   2. Was armed with a cane knife.
      
   3. This is a shop/office invasion.
      
   4. There was a vulnerable man inside the shop. He was in the course of performing his duties when the accused and his accomplice with a cane knife entered the office with force and threaten him.
      
   5. Property worth of $ 3535..40 was stolen,
      
   6. The robbery was pre meditated,
      
   7. The fear instilled and the trauma encountered by the Victim who was vulnerable at the time of the robbery.
      
   8. The act of offence could have the effect of endangering innocent public and their freedom of life.
      
   9. The accused completely disregarded the law and order and utilize the vulnerability and the insecurity of the Victim to carry out this criminal act.
      
7. In the conclusion of her submission the learned counsel for the prosecution urges for a custodial sentence for the accused person.
   
8. The accused too submitted his written mitigation submission. The accused expressed his remorse and pleaded for a lenient sentence in his mitigation submission.
   
9. I now direct myself to consider appropriate sentences on you upon considering the general principles of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objectives of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
10. The purpose of sentencing you for the offence of aggravated robbery in pursuant of section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, more importantly to signify that the court and the community denounce the commission of such offences
    
11. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC HAC054.2054.2010; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sce of 8-14 year imprisonment. Justice Shameem in Seseu v State 2003, FJHC 224, 224, HAM0043J, 2003S, 10 December 2003) found that the tariff for robbery with violence is 4-7 years. Justice Shameem in sa Basa vs. the Sthe State (CrimAppeal AAU 24/2005), h5), held that "'Sentences for robberies involving firearms should ranom six to eight years. A lower range of four to seven years is appropriate where firearms arms 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, has 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'
    
12. In line with above sentencing guidelines and principles, I select 10 years imprisonment period as a starting point.
    
13. You committed this offence in a join enterprise with another accomplice. By virtue of the principle of join enterprise each one of your culpability and degree of responsibility for inflicting of violence and robbing the victim same as of your accomplices.
    
14. I now draw my attention to address the mitigating factors in your favors.
    

38 years of age,

1. Married with three children,
   
2. Asked for forgiveness,
   
3. Pleaded guilty at the first available opportunity,
   
4. Stolen Items were recovered,
   

15. In view of aforementioned aggravating factors I increase 6 years to reach the period of 16 years. I reduce 5 years for your early guilty plea and 4 years for your other mitigating factors. Now your sentence reaches to 7 years of imprisonment period. I further reduce 2 months for the time you spend in remand custody prior to this sentencing pursuant to section 24 of the Sentencing and Penalties Decree. Your sentencing now reachs to 6 years and 10 months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree, sentence which is above two years could be suspended by this court.
    
16. Accordingly, I sentence you for 6 years and 10 months imprisonment period for the offence of 'Aggravated Robbery', which is punishable under Section 311 (1) (b) of the Crimes Decree No 44 of 2009. Further pursuant of section 18 (1) of the sentencing and Penalties Decree you are not eligible for parole for a period of 6 years.
    
17. Since this court is exercising the extended jurisdiction of the High Court in your case, you may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

On this 16th day of July 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.