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State v Heritage [2017] FJMC 8; Criminal Case 659.2015 (3 January 2017)

IN THE MAGISTRATE'S COURT
AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 659/15

State

.V.

Apete Rokotuiwai Heritage

Prosecution : WPC Losalini (Police Prosecution)

Accused : Present – In Person

SENTENCE

_______________________________________________________________________

Apete Rokotuiwai Heritage this is your sentence. You chose that this Court deal with your case. You have pleaded guilty, on your own free will to the following charge:

Charge
Statement of offence (a)

ROBBERY: Contrary to Section 310 (1)(a) (i) of Crimes Decree 2009

Particulars of offence (b)

Apete Rokotuiwai Heritage on the 28^th day of March 2015 at Nausori in the Central Division, robbed Christopher Samuel of his wallet containing cash of $200.00, eye glasses values at $400.00, Passport valued at $82.50 and short pants valued at $30.00 all to the total value of $712.50 and immediately before stealing used force on the said Christopher Samuel.

You admitted the statement of facts and the previous conviction that were put to you.

The Maximum Penalty

The Maximum Penalty for Robbery under the Crimes Decree is 15 years imprisonment.

The Tariff

In determining the tariff of robbery with violence this Court has noted Justice Goundar’s sentencing in State v Rokonabete [2008] FJHC 226; HAC118.2007 (15 September 2008), where his Lordship stated that “In Basa v The State, Criminal Appeal No. AAUU24 of 2005, the Court of Appeal observed that the earlier decisions in which New Zealand cases have been used as guidance in assessing appropriate penalties for robbery with violence (such as Moananui [1983] NZCA 66; [1983] NZLR 537) may need to be reconsidered. Under those decisions a "starting point" is suggested at 6 or more years, increasing to 8 or more years where there is a greater risk of violence or harm. The Court of Appeal pointed out that the levels of sentences in robbery cases should be based on English authorities because the sentence provided in our Penal Code is close to that in the English Law.

In Wainiqolo v State, Criminal Case No. HAC008 of 2005, Winter J used a starting point of 12 years imprisonment for an armed robbery of a business woman who was on her way to bank her cash takings. Winter J considered the starting point on the basis of the English authorities first described in Turner 61 Cr. App. R.67 and then Daly [1981] 3 Cr. App. R.(S) 340, and Hooley [2003] EWCA Crim 848; [2001] 2 Cr. App. R.(S) 105. The offender was sentenced to a term of 10 years imprisonment consecutive to an existing imprisonment sentence of 7 years. On appeal, the Court of Appeal upheld the sentence (Wainiqolo v The State, Criminal Appeal No. AAU0077 of 2006) and said the total sentence was justified because the offender had committed two violent robberies. Subsequently, the same offender (Wainiqolo) was sentenced in relation to another robbery to 14 years imprisonment by Gates J, concurrent to all existing terms (State v Wainiqolo, Criminal Case No. HAC 015.04S).

In England, the leading Court of Appeal decision on robbery is still the 1975 case of Turner (supra). The English Court of Appeal said that the normal sentence for anyone taking part in a single offence of armed robbery was 15 years and the maximum total sentence for those who committed more than one robbery was 18 years.

In R v Adams and Harding [2000] 2 Cr. App. R(S) 274, the English Court of Appeal said that although Turner provided the starting point, the guidelines now had to be revised upwards in today’s sentencing climate. According to Adams and Harding, a sentence of 25 years may be appropriate for a person found guilty of more than one offence and a sentence of more than 15 years may be appropriate for a person with a previous conviction for armed robbery who is found guilty of a single offence.

From these authorities, the following principles emerge. 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 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.”

Starting Point

In view of the above-mentioned observations and the relevant provisions of the Sentencing and Penalties Decree. This Court takes 7 years as the starting point for the offence that you have committed. This starting point is selected taking into consideration the degree of force used on the victim.

Guilty Plea

For the guilty plea you get 2 years discount. You have saved everyone’s time with a guilty plea before a hearing was set. You are now to serve 5 years imprisonment.

Mitigation

Your mitigation is that you are 26 years old, married with 1 child, serving prisoner due to be released in 2017, seeking forgiveness and apology, will not re-offend and seek to stay with the family.

For your total mitigation you are given 6 months discount.

Apete Rokotuiwai Heritage your sentence is 4 years 6 months imprisonment.

Non Parole Period

This Court fixes a non-parole period of 4 years.

Right of Appeal

Any party that is not satisfied with this sentence has 28 days to appeal to the High Court.

Chaitanya Lakshman

Resident Magistrate

3/1/2017