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State v Temo [2016] FJMC 105; Criminal Case 1709.2010 (1 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: -1709/2010

STATE
V

JOSEVA TEMO
MANASA TEMO

For the Prosecution: Cpl Shaw
The Accused : In persons
Date of Sentence : 01^st of August 2016

SENTENCE

1. JOSEVA TEMO ,MANASA TEMO you both were convicted after a hearing to one count of Attempted Aggravated Robbery contrary to Sections 44(1) and 311(1)(a) of the Crimes Decree and one count of Damaging Property contrary to section 369(1) of the Crimes Decree.
2. During the hearing it was proved that on 28^th September 2010 you both with another two tried to rob the British American Tobacco vehicle at Wailoku. You all were wearing masks and attacked the vehicle with cane knives and damaged the glass of that vehicle. The driver managed to take the vehicle away from the scene which prevented it being robbed. But during these offending you managed to injure the driver as per medical report.
3. Section 44 of the Crimes Decree states that a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
4. In this case the accused were charged with attempted aggravated robbery and in view of Section 44 need to be sentenced as they have committed the Aggravated Robbery.
5. Maximum penalty for the offence of Aggravated Robbery under the Crimes Decree is 20 years imprisonment.
6. In Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) his Lordship Chief Justice Anthony Gates said:

“We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them.”

7. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010)the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

8. Considering the gravity of offending and the culpability, I am going to select 08 years as the starting point for the offence of Attempted Aggravated Robbery which is the lower end of tariff.
9. In Wise v State (supra) his Lordship Chief Justice identified following grounds as aggravating this offence:

(i) Offence committed during a home invasion.

(ii) In the middle of the night when victims might be at home asleep.

(iii) Carried out with premeditation, or some planning.

(iv) Committed with frightening circumstances, such as the smashing of windows, damage to the house or property, or the robbers being masked.

(v) The weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way.

(vi) Injuries were caused which required hospital treatment, stitching and the like, or which come close to being serious as here where the knife entered the skin very close to the eye.

10. Based on above guidelines , I consider following as aggravating factors in this case:
    1. You both were wearing masks at that time;
    2. For the offences cane knives were used;
    100. The driver got injured;
    4. This was premediated as shown by the caution statements.
11. For the above aggravating factors I add 03 years to reach 11 years imprisonment for both accused.
12. The accused were given an opportunity to mitigate and following facts were submitted:

1^st accused

1. 27 years old;
2. Married with 2 children;

100. Looking after the family.

2^nd accused

a. 23 years old;

b. Married with 2 children;

c. First offender at the time of offending.

13. For the above mitigating factors, I deduct 03 years to reach 08 years imprisonment.
14. During the mitigation you both submitted that for this case you were remanded for 02 months and pursuant to section 24 of the Sentencing and Penalties Decree I deduct that period to reach 07 years 10 months imprisonment.
15. Considering all the circumstances I sentence you both to 06 months imprisonment to the offence of Damaging Property concurrent to the Aggravated robbery.
16. The court has a duty to protect the public from this kind of offences and prepared to give long custodial sentences to fulfill that objective. Therefore the main consideration in this sentence is the general deterrence and special deterrence.
17. This Court sentenced both of you to 07 years 10 months imprisonment for this charge with a non-parole period of 05 years.
18. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate