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State v Gukibau [2013] FJMC 320; CF826.13 (23 July 2013)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: 826/2013

THE STATE

–V-

TEVITA GUKIBAU &
ANOTHER

For the State: Mr. Paka
For the Accused: Present in Person

SENTENCE

1. TEVITA GUKIBAU, you have pleaded Guilty to the following Charge: Aggravated Robbery Contrary to Section 311 (1) (a) of the Crime Decree No. 44 of 2009 and the particulars of offence is as follows;
   

TEVITA GUKIBAU and with ANOTHER on the 05th day of May 2013, at Suva in the Central Division stole 1 x Jihang mobile Terrain valued at $200.00, ladies Longines wrist watch valued $3330.00 all to the total value of $3530.00, from PEILIAN FENG.

2. You were convicted of the charge on your own plea of guilty. I am satisfied that you are fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you reads amongst others as follows; That;
   

On the 05th of May 2013 at about 3.40pm TEVITA GUKIBAU (hereinafter referred to as the (Accused) and another entered the business premises of PEILIAN FENG (hereinafter referred to as the Complainant).

The [Accused] and another entered the business premises of the complainant; they threatened to assault and chased the [Complainant] and her staffs outside of the premises. Then, the accused and another ransacked the office the fled out, upon fleeing outside the premises, one of the two accused pulled the complainant’s “Longines” wristwatch worth $3330.00.And mobile phone valued at $200.00.

The complainant lodged a complaint to the Police who later arrested the accused, who was later caution interviewed and made admissions as to the commission of the alleged offence.

The stolen items were recovered by Police.

4. Aggravating Factors
   

According to the information revealed by the Summary of Facts placed before Court; the Accused TEVITA GUKIBAU threatened to assault and chased the complainant and her staffs outside of the premises and thereafter ransacked the office and fled out.

You have utilized the vulnerability and insecurity of the victims to carry out your criminal act. The victims who were the shop owner and the staffs were suddenly threatened and stole in broad day light. This horrifying experience definitely remains with victims in rest of their lives. Your act of offence could have the effect of endangering innocent public. Below factors also should consider as aggravating factors.

1. It was committed in a group,
2. It was in a public place
   

5. Mitigating Factors and Personal Background:
   

I consider following mitigation submission including your personal background submitted by the learned Counsel from the Legal aid Commission as follows: That you are -
23 years old, shoe shine boy; seek courts mercy to consider mitigation due to your family dire situation. Sole provider for your aunty (with stroke), financial bind due to your absence. You use to sell food parcel and do screen printing (graphic design) in printing sulu, t-shirts and etc to earn a living and look after your aunty as she cannot do any work. You seek forgiveness from court. You, after realizing some time in prison realize that staying in prison is a waste of time and cannot give you a good future. You ask this court if you could be given a chance to go and look after your aunty and not to commit any other offence. Seek a lenient and suspended sentence. Promise not to re-offend.

6. Law, Tariff and guideline Judgments
   

I reproduce penal section for clarity. It says;

Section 311(1) (a) A person commits an indictable offence if he or she

(a) commits a robbery in company with one or more other persons; or

Maximum Penalty for aggravated robbery is Imprisonment for 20 years.

Tariff

Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HAC054.2010; HAC055.2010; HAC056.2010 (2 July 2010) found that organized gang robberies attract the sentence of 8-14 year imprisonment. Justice Shameem in Seseu v State 2003, FJHC 224, HAM0043J, 2 10 December 2003) found thnd that the tariff for robbery with violence is 4-7 years

Hon. Justice Goundar in State vs Mataiasi Bulivou Susu [2010] FJHC 226; HA2010; ha0; has summarized the guiding principles in sentencing in cases involving robbery. The dominant factor in assessing seriousness for any types of robbery is the degree of force used reatened. The degree ofee 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. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of items taken and the fact that an offence was committed whilst the offender was on bail.(underline is mine)

The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved.

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".

7. Sentence
   

In the light of Sentencing Guidelines under section 4 (1) and (2) and General Sentencing Provisions under section 15(3) ) of the Sentencing and Penalties Decree I consider an appropriate sentences on you.

The purpose of sentencing you for the offence of Aggravated Robbery in pursuant to 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 the to signify that the court and the community denounce the commission of such offences.

Bearing in mind, above judicial practices and provisions, I pick 4 years as a starting point. I add 02 year to reflect above mentioned aggravating factors.

In considering your early guilty plea I deduct 02 years. I further reduce 06 months in view of migratory factors. I note that you have 05 previous convictions therefore you are not entitled for a further discount.

Now your sentence reaches to 03 years and 06 months of imprisonment period.

I note that you have been remand in custody since 07thMay 2013 to 23rd July 2013. You have spent more than 02 months and 02 weeks in remand for this particular case. Section 24 of the sentencing and penalty Decree reads under the heading of “Time in custody before trial to be deducted” that “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.” And also in Fiji court of Appeal in: Prasad v State {2010] FJHC 12; AAU 0111.2007(8th April 2010) at paragraph 6 stated:

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence. Although it is not necessary to make a precise calculation (Basa v the State [2006] FJHC 23:AAU0024.2005 (24th March, 2006)".

In all the circumstances I find it appropriate to consider the time you spent in custody. Therefore I deduct three months from your imprisonment period. Now your imprisonment period stands for 03 years and 03 months.

I must consider the nature and gravity of the offences you committed. The offences are not trivial. The offences are serious because they involved the actual use of physical violence or threat of violence. You went on a sphere by committing three robberies with no regard to the personal safety of the victims or security of their properties.

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 employees who were engaged in their decent livelihood. 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.

Also, being threatened with violence by a gang to hand over the property must be daunting to the victim. These experiences cannot be forgotten easily and the emotional impact that such experiences leave behind on the victim cannot be ignored by the court.

There are no exceptional circumstances which would justify a non-custodial sentence and also I do not see any compelling reasons to suspend your sentence. Therefore, the imprisonment periods to be spend in custody with immediate effect. You will be eligible for parole after 18 months.

Since this court 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.

--------------------------
Lakshika Fernando
Resident Magistrate
On this 23rd day of July 2013