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Nokonokomoli v The State [2002] FJHC 123; HAA0015J.20002S (29 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0015 OF 2002

Between:

JOLAME NOKONOKOMOLI
Appellant

And:

THE STATE
Respondent

Hearing: 24th May 2002
Judgment: 29th May 2002

Counsel: Appellant in Person
Mr W. Kuruisaqila for Respondent

JUDGMENT

On 14^th February 2000 the Applicant pleaded guilty on the following counts:

FIRST COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code, Cap 17.

Particulars of Offence

JOLAME NOKONOKOMOLI and 4 others on the 30^th day of July, 1999 at Nausori in the Central Division, unlawfully and without colour of right but not as to be guilty of stealing, drove away taxi Reg. No. E3827 the property of RAJNESH KARAN MISHRA s/o Shandil Mishra.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap.17.

Particulars of Offence

JOLAME NOKONOKOMOLI and 4 others on the 30^th day of July, 1999 at Nausori in the Central Division, robbed one VIJAY KUMAR SINGH s/o Ram Singh of 2 cash registers valued at $2700.00 and cash of $800.00 all to the total value of $3500.00 and immediately before such robbery threatened to use personal violence to the said VIJAY KUMAR SINGH s/o Ram Singh.

THIRD COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

JOLAME NOKONOKOMOLI and 4 others on the 30^th day of July, 1999 at Nausori in the Central Division, robbed one RAJNESH KARAN MISHRA s/o Shandil Mishra of cash $140.00 and an electronic taxi meter valued at $600.00 all to the total value of $740.00 and immediately before such robbery threatened to use personal violence to the said RAJNESH KARAN MISHRA s/o Shandil Mishra.

FOURTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE WITHOUT DRIVING LICENCE: Contrary to Section 23 and 85 of the Traffic Act, 176.

Particulars of Offence

JOLAME NOKONOKOMOLI on the 30^th day of July 1999 at Nausori in the Central Division, drove a taxi registration number E3827 without being a holder of a driving licence.

FIFTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE IN CONTRAVENTION WITH THE CONDITION OF THIRD PARTY POLICY RISK: Contrary to Section 4(1)(2) of the Motor Vehicle Third Party Insurance Ordinance, Cap. 177.

Particulars of Offence

JOLAME NOKONOKOMOLI on the 30^th day of July, 1999 at Nausori in the Central Division, drove a taxi registration number E3827 on Ratu Kadavulevu Road, Nausori when there was not in force in relation to the use of the said motor vehicle by the said JOLAME NOKONOKOMOLI in respect of the third party policy risk as complies with the provision of this Act.

He was sentenced on 16^th February 2000 as follows:

Count 1: 4 months imprisonment concurrent to Count 2;

Count 2: 3 2 years imprisonment consecutive to present term;

Count 3: 3 2 years imprisonment concurrent to Count 2;

Count 4: Fined $30.00 in default 30 days imprisonment;

Count 5: Fined $60.00 in default 60 days imprisonment.

He was also disqualified from holding or obtaining a driver=s licence for a period of two years.

The Applicant now seeks to appeal against his convictions and sentence out of time. The State opposes the application. The reason given for the late filing of appeal, is that an appeal

petition had been sent to the Nausori Magistrates= Court on the 24^th of February 2000, but that it had got lost in the post. In fact, a copy of the lost petition of appeal dated 24^th February 2000, is inexplicably in the court record. He sent a new petition in August 2001 to the High Court with the following grounds of appeal:

1. The sentence was manifestly harsh and excessive;
   
2. The learned Magistrate did not put enough weight on the guilty pleas;
   
3. Mitigation was not taken into account;
   
4. The totality principle was ignored.
   

At the hearing of this application, he also submitted that his pleas were equivocal because of non-disclosure of prosecution documents.

Although the appeal is very much out of time, I allow the application to enlarge time because it appears from the record that the Applicant did file his petition in time but that the Magistrates= Court failed to send the appeal record to the High Court until 2002. I turn therefore to the appeal proper.

The Appellant pleaded not guilty on all counts on 9^th November 1999. Disclosure was ordered but he changed his plea on 14^th February 2000. The facts outlined by the prosecution were that the Appellant and three accomplices took over a taxi driven by one Rajesh Karan Mishra on 30^th July 1999 at Naila, Bau. The Appellant was in the taxi, guarding the driver while his accomplices robbed the shop of Ram Singh at Nakelo. The Appellant was not masked but his accomplices were. They threatened the people in the shop with knives and stole two cash registers valued at $2,7000.00 and $800.00 in cash.

On the same day the Appellant and his accomplices removed the taxi-driver=s taxi meter and robbed him of $140.00 cash. They then left the driver inside the taxi and ran away into the bush.

The Appellant was interviewed by the police and he confessed all offences to them. He was said to have no previous convictions, but in mitigation he said that he was serving a four year term of imprisonment for House-breaking.

In sentencing him, the learned Magistrate treated the Appellant as a first offender. He imposed a concurrent sentence on the counts because they arose out of one transaction, but ordered that the total term of 32 years imprisonment be served consecutive to the term already being served.

In the course of his submissions the Appellant agreed that the House-breaking offence was unconnected to the case on appeal and said that his present date of release, after reduction for remission is April 24^th 2004.

On the basis of the court record, I find no basis for the Appellant=s claim that his pleas were not unequivocal. He said he understood the charges, and plead not guilty initially, later changing his plea to one of guilty. His appeal against conviction is therefore dismissed.

The sentence of 32 years imprisonment is below the tariff for Robbery with Violence cases. The learned Magistrate treated him with the leniency normally shown to a first offender. However the Appellant was not a first offender, and was fortunate to receive the sentences he did. The use of masks, the knives, the numbers of offenders working in a gang, the terrorising of taxi-drivers and shop-keepers in an isolated rural community and the premeditation involved in the offending, were all aggravating circumstances which might well have led to a heavier penalty than that imposed.

The imposing of a consecutive sentence to the House-breaking sentence was right in principle because it was a different transaction, and the total sentence of 72 years imprisonment does not offend the totality principle. For these reasons, this appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
29^th May 2002