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State v Lagilagi [2015] FJMC 16; Criminal Case 1974.2014 (13 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: -1974/2014

STATE

V

KELEPI LAGILAGI
SETEFANO TUVALO
VILIAME VUA

Counsel : Mr. T.Qalinauci for the State
Ms.Mishra (LAC) for the 1st accused
Ms.Tarai (LAC) for the 2nd accused
Ms.Vulimainadave(LAC) for the 3rd accused

Date of Sentence : 13th February 2015

SENTENCE

1. The accused are charged in this Court for the following offence;
   

AGGRAVATED ROBBERY: contrary to Section 311() (a) of the Crimes Decree 2009.

Particulars of Offence

KELEPI LAGILAGI, SETEFANO TUVALU and VILIAME VUA, in company of each other on the 20th day of October 2014 at Samabula in the Central Division, sole an ALCATEL brand mobile phone valued at $200.00 and a gold bracelet valued at $239.00, all to the total value of $439.00 the properties of KRISHNEEL KRIS KUMAR and during such robbery used force on the said KRISHNEEL KRIS KUMAR.

2. All the accused pleaded guilty for this charge on 04/02/2015 and also admitted the summary of facts presented by the State.
   
3. Summary of facts states as follows:
   

On the 20th of November 2014 at about 12.30pm along Ratu Mara Road, Samabula, Krishneel Kris Kumar (PW-1) [19 years old, Tertiary student at Fiji National University [was talking on his ALCATEL brand mobile phone while he was waiting for a bus. At that time 4 i-taukei boys were standing beside him.

Then suddenly one of the boys grabbed Mr. Kumar's phone and all of them ran away.

Mr. Kumar ran after one of the boys and he was punched by one of the boys and Mr. Kumar fell on the pavement. Then one of the boys took a gold bracelet from Mr. Kumar's right hand. The boys ran towards Jittu Estate settlement.

Mr. Kumar reported the matter to police.

During the investigation the police managed to arrest Kelepi Lagilagi (Juvenile 1) [17 and 11 months old, at the time of the offending, Unemployed], Setefano Tuvalo (Accused 2) [18 years old, Unemployed] and Viliame Vua (Accused 3) [18 years old, Unemployed] and they were interviewed under caution.

❖ Juvenile 1 admitted in his caution interview that he was part of the group that robbed a Fijian boy. The Fijian boy was assaulted and robbed. Juvenile 1 ran away with the others [Q&A: 31, 34, 35, 36, 37, 38, 39, 40, 42, 43]

❖ Accused 2 admitted in his caution interview that he was part of the group that robbed the Fijian boy. He punched the Fijian boy and ran away with the others. [Q&A: 34, 35, 36, 37, 39, 40]]

❖ Accused 3 admitted in his caution interview that he was part of the group that robbed the Fijian boy. Accused 3 ran away with the others. [Q&A: 16, 28]

Subsequently, the accused persons were charged with one count of Aggravated Robbery: contrary to Section 313(1) (a) of the Crimes Decree No. 44 of 2009.

4. SETEFANO TUVALU and VILIAME VUA I am satisfied both of your pleas were unequivocal and convict both of you for this charge. KELEPI LAGILAGI, at the time of the offence you were a juvenile and therefore I find you guilty for this charge .
   

LAW AND TARIFF

5. Maximum penalty for the offence of Aggravated Robbery is 20 years imprisonment.
   
6. His Lordship Justice Goundar in State v Manoa [2010] FJHC 409; said:
   

"The maximum penalty for robbery with violence under the Penal Code is life imprisonment, while the maximum penalty for aggravated robbery under the Crimes Decree is 20 years imprisonment. Although the maximum sentence under the Decree has been reduced to 20 years imprisonment, in my judgment, the tariff of 8 to 14 years imprisonment established under the old law can continue to apply under the new law. I hold this for two reasons. Firstly, the established tariff of 8 to 14 years under the old law falls below the maximum sentence of 20 years under the new law. Secondly, under the new law, aggravated robbery is made an indictable offence, triable only in the High Court, which means the Executive's intention is to treat the offence seriously".

7. Her Ladyship Justice Shameem in Sakiusa Basa v The State [Criminal Appeal AAU 24/2005) held:
   

"Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises are banks, or shops, post officers 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 for the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offencs should be considered aggravating features. The sentence may be reduce where the offender has no previous convictions, had 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".

8. In Nawai v State [2011] FJHC 509; HAA 023.2011 (8 September 2011) his Lordship Justice Madigan stated;
   

"Robbery with Violence is an offence which presents itself to the courts in many various manifestations, form the minor "punch and pickpocket" to the very serious gang invasion of private homes with theft and injury to the occupants. Serious thought this offence may be, it cannot be equated to acts of violence with weapons used causing injury to the victim.

In the absence of any evidence of injury to the victim and in the light of evidence that the money stolen from the victim was returned to him a suitable starting point would perhaps be four years rather than eight".

9. In State v Rokonabete [2008] FJHC 226; HAC 118.2007 [15 September 2008] it was held by his Lordship Justice Goundar that;
   

"The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating factor. If the victims are vulnerable, such as elderly person and person providing public transport, that will be an aggravating factor. Other aggravating factors may include the volume of items taken and the fact that an offence was committed whilst the offender was on bail.

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 offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved".

10. The 1st accused was a juvenile at the time of the offence and therefore the maximum sentence he can be given under the Juvenile Act is 02 years imprisonment.
    

AGGRAVATING FACTORS

11. Following are aggravating factors in this case
    
    1. Disregard of the property rights of the other people.
    2. The complainant suffered injuries .
       

MITIGATING FACTORS

12. The migrating factors for all the accused are young offenders, first offenders , co-operated with the police, some items were recovered
    
13. Considering the facts in this case as well as the provisions in the Juvenile Act I select 18 months as the starting point for the 1st accused (KELEPI LAGILAGI) and add further 12 months for the aggravating factors to reach 30 months . For the mitigating factors and time in remand (1 month) I deduct 10 months and also deduct 1/3 for early guilty plea to reach 14 months imprisonment.
    
14. SETEFANO TUVALU and VILIAME VUA, I select 06 years as my starting point and add two years to reach 08 years. For the mitigating factors I give discounts as follows to reach 03 years imprisonment .
    

Young age – 02 years

First offender- 02 years

Co-operated with the police, seeks forgiveness, some items recovered, time in remand – 01 year

15. For pleading guilty at the first available opportunity after getting the proper legal advice I deduct 1/3 to reach 02 years imprisonment for both of you .
    
16. Final issue to determine in this case is whether it is appropriate to suspend these sentences pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
    
17. I am mindful that all the accused are young offenders as well as first offenders. Even though normally a custodial sentence is given for this kind of offences as deterrence for others I am also aware that a purpose of a sentence is also to establish conditions for reform and rehabilitations. Therefore considering the young ages as past good behavior I do not think that the three accused would be able to reform in a prison .In fact there is a danger of letting them associating with hardcore criminals if given a custodial sentence and this would be detrimental to the society in the future .
    
18. Accordingly I suspend these sentences to 03 years. If the accused commit any crimes during the next 03 years they can be charged under section 28 of the Sentencing and Penalties Decree.
    
19. Since this Court is exercising the extended jurisdiction of the High Court in this case , the parties may appeal against this sentence within 30 days to the Court of Appeal.
    

H.S.P. Somaratne
Resident Magistrate, Suva