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Tavutu v The State [2002] FJHC 155; HAA0056J.2002L (27 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0056 OF 2002L

Between:

VILIAME TAVUTU
Appellant

And:

THE STATE
Respondent

Hearing: 22^nd August 2002

Judgment: 27^th August 2002

Counsel: Appellant in Person
Mr P. Bulamainaivalu for State

JUDGMENT

The Appellant appeals against a sentence of 2 years imprisonment imposed on him by the Lautoka Magistrate=s Court on 21^st February 2002, for the following offence:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 of the Penal Code, Cap. 17.

Particulars of Offence

TEVITA BEKA and VILIAME TAVUTU, on the 18^th day of February, 2002 at Vuda, Lautoka in the Western Division, robbed ONO MATSUO of $20,000.00 cash and before such robbery did threaten to use personal violence on the said ONO MATSUO.

His grounds of appeal may be summarised thus:

1. His accomplice had blamed him for the offence;
   
2. He was a former patient of the St. Giles Mental Hospital and did not understand the proceedings in the absence of counsel;
   
3. There was disparity between his sentence and the sentence of his accomplice;
   
4. The sentence was harsh and excessive.@
   

In the Magistrate=s Court on the 21^st of February, the Appellant and his co-accused were both unrepresented. Before pleas were taken, they were asked if they wanted counsel to represent them. They said they did not. The Appellant further said that he knew court procedure. The charge was then read and explained. They said they understood. They both pleaded guilty.

The facts were that the Appellant and his co-accused were both from Veiseisei Village. On the 18^th of February, they went to the Mediterranean Hotel, to a villa occupied by a Japanese visitor to Fiji. The accomplice had a kitchen knife. They climbed over the fence and entered the house through the screens. They threatened the complainant. The Appellant held an iron rod. He was the principal offender. The complainant gave them $20,000 in Australian currency. The Appellant and his accomplice took the money and fled. A boat engine was bought with the proceeds of the robbery, although it is not clear from the facts who actually bought it.

The Appellant admitted the facts. He had three previous convictions, one of which was for robbery with violence. The accomplice was a first offender. In mitigation the Appellant expressed remorse, said he was 33 years old and single.

The learned Magistrate then sentenced the Appellant and his co-accused to two years imprisonment each.

Appeal Against Conviction

I consider that there is no merit in the appeal against conviction. The record shows that the Appellant was explained his right to counsel. He waived that right. He said he understood the courts procedures. The record shows no suggestion that he did not understand. Further the interview statement tendered by the prosecution contains a full confession of the robbery, and a rational account of the events of that day.

There is nothing to suggest that the plea was not unequivocal, or that the Magistrate should have called for a psychiatric examination. The appeal against conviction is dismissed.

Appeal Against Sentence

Although the Appellant was sentenced to 2 years imprisonment, his committal warrant, dated 21^st March erroneously reads 22 years. The Appellant was sentenced to 2 years imprisonment on the 21^st of February and the prison records must be adjusted accordingly.

The sentence is well below the tariff for robbery with violence. Weapons were used, and the value of the money stolen was high. Other than the plea of guilty, there were no other mitigating circumstances. Clearly, the sentence is not excessive. Further, although the prosecution said the Appellant was the principal offender, he denied this in his interview record. The learned Magistrate sentenced on the basis that each accused was equally culpable. He was right to do so, given the contents of the interviews.

In the circumstances the sentence is not manifestly excessive. The appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
27^th August 2002