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Nukunukua v State [2002] FJHC 192; HAA0091J.2002S (23 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 091 OF 2002S

Between:

EMOSI NUKUNUKUA; and
MALAKAI FINAU
Appellants

And:

THE STATE
Respondent

Hearing: 5th December 2002
Judgment: 23rd December 2002

Counsel: Appellants in Person
Mr N. Lajendra for State

JUDGMENT

The Appellants (the 1st and 2nd accused at the Magistrate’s Court hearing) were convicted on their pleas of guilty of the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

Emosi Nukunukuwa, Malakai Finau, Epeli Baleimakogai and Ropate Matalau, on the 22nd day of July 2002 at Nasinu in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing took to his own use a motor vehicle registration number CR 855, the property of Yogesh Kumar s/o Mani Ram.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

Emosi Nukunukuwa, Malakai Finau, Epeli Baleimakogai and Ropate Matalau, on the 22nd day of July, 2002 at Nasinu in the Central Division, robbed Yogesh Kumar s/o Mani Ram of $60.00 cash and immediately before such robbery, did use personal violence to the said Yogesh Kumar s/o Mani Ram.

THIRD COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 256 of the Penal Code, Act 17.

Particulars of Offence

Emosi Nukunukuwa, Malakai Finau, Epeli Baleimakogai and Ropate Matalau, on the 22nd day of July 2002, at Nasinu in the Central Division, wrongfully confine Yogesh Kumar s/o Mani Ram.

FOURTH COUNT

Statement of Offence

DRIVING A MOTOR VEHICLE WITHOUT A DRIVING LICENCE: contrary to Section 56(6) of Land Transport Act No. 35 of 1998.

Particulars of Offence

Emosi Nukunukuwa on the 22nd day of July, 2002 at Nasinu in the Central Division drove a motor vehicle on Kings Road, without being the holder of a driving licence in respect of the said motor vehicle.

FIFTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE IN CONTRAVENTION OF THIRD PARTY POLICY RISK: Contrary to Section 4(1)(2) of Third Party Policy Act 177.

Particulars of Offence

Emosi Nukunukuwa, on the 22nd day of July 2002 at Nasinu in the Central Division drove a motor vehicle on Pritam Singh road when there was not in force in relation to the use of the said motor vehicle by the said Emosi Nukunukuwa on the policy of insurance in respect of the said motor vehicle third party policy risk, as complied under the provision of this Act.

The facts were that the complainant who is a 23 year old van driver of Narere, was driving his van for the Appellants at Pritam Singh Road when the 2nd Appellant put a kitchen knife to his throat. The 1st Appellant then tied his hands with a piece of cloth. He was told to lie down at the back of the van. The 1st Appellant then drove the van to Wainibuku where they picked up the 3rd and 4th accused. They left the complainant on the road, but picked him up again and took him to Reservoir Road where they tied him up with vines and stole $60.00 from him. They then drove off, with the 1st Appellant driving. The complainant sought help at a nearby house and rang the police. The Appellant and their accomplices abandoned the vehicle at Veikoba, Valelevu.

All accused were arrested and charged. They all admitted committing the offences. The complainant did not receive physical injuries. These facts were admitted. The Appellants admitted 6 previous convictions each. In mitigation, counsel for the 1st Appellant said that he was 28 years old, was married with 2 children, and was unemployed. He was remorseful and had apologised to the complainant. The 2nd Appellant was 30 years old, was married with one child and was unemployed. He also expressed remorse and said he had apologised to the complainant.

The learned Magistrate sentenced the Appellants and the 3rd and 4th accused (who were first offenders) as follows:

COUNT 1

Accused 1 & 2 - Sentenced to 3 months imprisonment each;

Accused 3 & 4 - Bound over for $100 for12 months not to re-offend.

COUNT 2

Accused 1 & 2 - Sentenced to 2 years imprisonment each to be served consecutive to Count 1;

Accused 3 & 4 - Sentenced to 12 months imprisonment suspended for 2 years.

COUNT 3

Accused 1 & 2 - Sentenced to 3 months imprisonment consecutive to counts 1 and 2;

Accused 3 & 4 - Bound over for $100 for 12 months not to re-offend.

COUNT 4

Accused 1 - Sentenced to 3 months imprisonment consecutive to counts 1, 2 and 3.

COUNT 5

Accused 1 - Sentenced to 3 months imprisonment consecutive to counts 1, 2, 3 and 4;

­ Disqualified from driving any motor cycles or motor vehicles or obtaining any driving licence for 2 years.

The 1st Appellant was therefore sentenced to a total of 3 years imprisonment. The 2nd Appellant was sentenced to 2 years and 6 months.

The Appellants say that these sentences were harsh and excessive, saying that the Magistrate had been overly influenced by their previous convictions.

The tariff for the offence of robbery with violence in Fiji is 4-7 years imprisonment. In this case, the fear that the complainant must have experienced when he was tied up and confined in this manner was undoubtedly traumatic. The use of the kitchen knife to cow him into submission must have been even more traumatic. In the circumstances a sentence between 4-5 years imprisonment would have been appropriate with a suitable reduction for the guilty plea, apology and remorse. The total of 3 years imprisonment for the 1st Appellant, and 2½ years for the 2nd Appellant is not manifestly excessive. The Appellants were fortunate not to receive heavier sentences.

For these reasons this appeal fails, and is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd December 2002