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Talebula v State [2021] FJCA 249; AAU0074.2018 (20 December 2021)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates Court]

CRIMINAL APPEAL NO.AAU 0074 of 2018

[In the Magistrates Court at Lautoka Case No. 366 of 2018/EJ25 of 2018]

BETWEEN:
AKUILA TALEBULA

SAILOSI BAWAQA

Appellants

AND:
THE STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. M. Fesauti for the Appellants

: Mr. R. Kumar for the Respondent

Date of Hearing: 20 December 2021

Date of Ruling: 20 December 2021

RULING

[1] The appellants with another (Semi Raisevuniwai) had been charged in the Magistrates court of Lautoka exercising extended jurisdiction on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree, 2009 committed on 09 April 2018 by mugging the complainant of an iPhone valued at $2000.00 and a wallet containing $364.00.

[2] Both appellants had pleaded guilty and the learned Magistrate had convicted the appellant. They had been sentenced on 05 July 2018 to 07 years, 09 months and 02 weeks of imprisonment with a non-parole term of 04 years.

[3] The appellants being dissatisfied with the sentence had signed a timely notice of leave to appeal against sentence. Legal Aid Commission had submitted an amended notice of appeal containing a single ground of appeal against sentence along with written submissions. The respondent too had tendered written submissions in response.

[4] According to the summary of facts (as stated in the appellants’ written submissions), the complainant had gone to a shop around 5.00 p.m. on the day of the incident and as he was coming out of it, the appellants and another had grabbed him and pinned him to the ground. His iPhone and the wallet had been removed and the appellants and their accomplice had fled the scene.

[5] This court delivered its Ruling on 29 April 2020 granting leave to appal mainly on the sentencing error of the learned Magistrate applying the sentencing tariff of 08-16 years, set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) against the factual background where the accused had been engaged in home invasion in the night with accompanying violence perpetrated on the inmates in committing the robbery.

[6] However, this is not an aggravated robbery involving a home invasion but more a case of street mugging as identified in Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) where the Court of Appeal set the tariff at 18 months to 05 years with a qualification that the upper limit of 05 years might not be appropriate if certain aggravating factors identified by court are present.
[7] In Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) the complainant, aged 18 years, after finishing off work was walking on a back road, when he was approached by the two accused. One of them had grabbed the complainant from the back and held his hands, while the other punched him. They stole $71.00 in cash from the complainant and fled. The Court of Appeal remarked:

‘[11] Robbery with violence is considered a serious offence because the maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in Basa v The State Criminal Appeal No.AAU0024 of 2005 (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should be based on English authorities rather than those of New Zealand, as had been the previous practice, because the sentence provided in Penal Code is similar to that in English legislation. In England the sentencing range depends on the forms or categories of robbery.

[12] The leading English authority on the sentencing principles and starting points in cases of street robbery or mugging is the case of Attorney General’s References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-called ‘mobile phones’ judgment). The particular offences dealt in the judgment were characterized by serious threats of violence and by the use of weapons to intimidate; it was the element of violence in the course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, and further where the maximum penalty was life imprisonment:

• The sentencing bracket was 18 months or 5 years, but the upper limit of 5 years might not be appropriate ‘if the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed’.
  
• An offence would be more serious if the victim was vulnerable because of age (whether elderly or young), or if it had been carried out by a group of offenders.
  
• The fact that offences of this nature were prevalent was also to be treated as an aggravating feature.’
  

[8] After the leave to appeal Ruling the appellants had filed an application for bail pending appeal and the State had tendered written submissions in response and stated inter alia that bail pending appeal may be favourably considered. Both counsel agreed on 16 December 2021 to have a ruling on bail pending appeal application on the written submissions filed.

Law on bail pending appeal

[9] The legal position is that the appellants have the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act namely (a) the likelihood of success in the appeal (b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellants when the appeal is heard. However, section 17(3) does not preclude the court from taking into account any other matter which it considers to be relevant to the application. Thereafter and in addition the appellants have to demonstrate the existence of exceptional circumstances which is also relevant when considering each of the matters listed in section 17 (3). Exceptional circumstances may include a very high likelihood of success in appeal. However, appellants can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he fails to satisfy court of the presence of matters under section 17(3) of the Bail Act [vide Balaggan v The State AAU 48 of 2012 (3 December 2012) [2012] FJCA 100, Zhong v The State AAU 44 of 2013 (15 July 2014), Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015), Ratu Jope Seniloli & Ors. v The State AAU 41 of 2004 (23 August 2004), Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019), Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013), Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012), Simon John Macartney v. The State Cr. App. No. AAU0103 of 2008, Talala v State [2017] FJCA 88; ABU155.2016 (4 July 2017), Seniloli and Others v The State AAU 41 of 2004 (23 August 2004)].

[10] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no direct relevance, practical purpose or result.

[11] If appellants cannot reach the higher standard of ‘very high likelihood of success’ for bail pending appeal, the court need not go onto consider the other two factors under section 17(3). However, the court may still see whether the appellants have shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.

[12] The appellants had already satisfied this court that they deserved to be granted leave to appeal to appeal against sentence and it now appears that they have a very high likelihood of success in their appeal against sentence due to the sentencing error of wrong tariff being applied. In my view the full court is not likely to impose the higher end of 05 years as the final sentence in this case.

[13] I shall now consider the second and third limbs of section 17(3) of the Bail Act namely ‘(b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellants when the appeal is heard’ together.

[14] The appellants have already served nearly 03 years and 06 months in imprisonment. The certified appeal records have been obtained by both parties but the appeal is not likely to be taken up before the full court in the immediate future (being an appeal filed in 2018). If the appellants are not enlarged on bail pending appeal at this stage, they are likely to serve perhaps more than the whole of the sentence the full court is likely to impose on them after hearing the appeal in the future. Therefore, it appears that section 17(3) (b) and (c) should be considered in favour of the appellants in this case.

[15] The State has submitted that there is an appeal bearing No. CAV 025 of 2019 before the Supreme Court scheduled to be heard on 07 April 2022 where the Supreme Court is likely to formulate sentencing guidelines for aggravated robbery which will help this court to dispose of several appeals pending before the full court of the Court of Appeal involving aggravated robbery.

[16] Therefore, I am inclined to allow the appellants’ application for bail pending appeal and release them on bail on the conditions given in the Order.

Orders

1. Bail pending appeal is granted to the appellants, AKUILA TALEBULA and

SAILOSI BAWAQA subject to the following conditions:

(i) The appellants shall reside at Lot 34 Jamuna Street, Drasa Vitogo, Lautoka with Asenaca Qausila aka Asenaca Adiliku who is the mother of the 01^st appellant and the aunt of the 02^nd appellant and with Ratu Eliki Nacagi who is the elder brother of the 01^st appellant and the cousin of the 02^nd appellant.

(ii) The appellants shall report to Lautoka Police Station every Saturday between 6.00 a.m. and 6.00 p.m.

(iii) The appellants shall attend the Court of Appeal when noticed on a date and time assigned by the registry of the Court of Appeal.

(iv) The appellants shall provide in the person of Asenaca Qausila aka Asenaca Adiliku who is the mother of the 01^st appellant and the aunt of the 02^nd appellant and with Ratu Eliki Nacagi who is the elder brother of the 01^st appellant and the cousin of the 02^nd appellant.

(v) Both sureties shall provide sufficient and acceptable documentary proof of their identities.

(vi) The appellants shall be released on bail pending appeal upon condition (iv) and (v) above being fulfilled.

(vii) The appellants shall not reoffend while on bail.

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL