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State v Bainivalu [2017] FJMC 91; Criminal Case 821.2016 (20 July 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 821/2016

STATE

V

SITIVENI BAINIVALU

For Prosecution: Ms. Serukai(ODPP)
The Accused: In person
Date of Sentence : 20^th of July 2017

SENTENCE

1. SITIVENI BAINIVALU, you were charged with another to one count of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Act No. 44 of 2009(“Crimes Act”).
2. You pleaded guilty for this charge on 19^th July 2017 and also admitted the following summary of facts presented by the State :

On the 6th of December, 2016 at about 231 6hrs at Nausori Town two unknown youths robbed one AARAV ANISH CHAND, (A-11), Naval Officer of Vuci Road Nausori of Atcatel Piri Mobile phone valued $350.00 on N.G Patel Road in front of Rup’s Big Bears.

On the above date time and place (A-1) was returning from clubing at Whistling Duck night club. Whilst drinking in the club (A-1) ran short of cash and wanted to withdraw more cash. (A-1) then proceeded to BSP Bank to withdraw. After withdrawing the cash, (A-1) was standing in front of the ATM machine and was attempting to call a taxi when suddenly the two unknown youths pushed him and robbed him off his mobile phone. Both ran towards the Pak N Save. One of the youths ended up in club again, whereby (A-1) followed him inside.

In the Night Club approached one of them and questioned one of the youth and he owned up stealing the mobile he came to know that his name was JOSEFA RAIKADROKA (B-1), 20 yrs, unemployed of Vunimono, Nausori and the other was SITIVENI BAINIVALU (B-2) 19 yrs, unemployed of Vunimono Nausori were arrested interviewed and subsequently charged. Both admitted to the offence and charged for Aggravated Robbery Section 311(a) of the Crime Decree.

3. I am satisfied that your plea was made voluntarily and unequivocal .Accordingly I convict you for this charge.
4. Maximum penalty for the offence of Aggravated Robbery under the Crimes Act is 20 years imprisonment.
5. 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.”

6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the 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".

7. Considering the objective seriousness, I select 10 years imprisonment as the starting point for your sentence.
8. In Wise v State (supra) his Lordship Chief Justice identified some grounds that can be considered as aggravating factors in this kind of an offence. They are as follows:

(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.

(vii) the victims frightened were elderly or vulnerable persons such as small children.

9. Even though this was not a home invasion, the admitted summary of facts shows this was committed in the middle of the night. I consider this as aggravating factor and add 03 years to reach 13 years imprisonment.
10. In your mitigation you submitted the following :
    1. 20 years old ;
    2. First offender;
    100. Peer pressure ;
    4. Seeking forgiveness.
11. For these mitigating factors, I deduct 03 years to reach 10 years imprisonment.
12. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount (Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007).
13. Further in UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
14. In this case giving full credit to your guilty plea, I deduct 1/3 to reach 80 months imprisonment.
15. Even though this is below the accepted tariff of this offence, I have come to this sentence based on an early guilty plea of the accused as well as his mitigating factors.
16. Section 24 of the Sentencing and Penalties Act stipulates that the remand period has to be considered as the period of imprisonment an accused already served. You were in remand for nearly 02 months before granted bail and I deduct that period to reach 78 months imprisonment.
17. SITIVENI BAINIVALU, You are presently 20 years old and going to spend best part of your young life inside a correction center. Even though it is distressing to see young people like you are being sentenced to long imprisonment, this court is willing to pay this price to protect the innocent public in Fiji from this kind of heinous crimes.
18. Accordingly you are sentenced to 06 years 6 months imprisonment for this charge with a non-parole period of 04 years.
19. Since this court is exercising the extended jurisdiction of the High Court, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate