IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0025 OF 2003S

Between:

STATE
Appellant

And:

ERONI RAIKOTI;
EPELI BAINOKONOKO; and
NACANIELI VERETAKI
Respondents

Hearing: 5th September 2003
Judgment: 12th September 2003

Counsel: Mr. P. Bulamainaivalu for State
1st and 3rd Respondents in Person
No appearance by 2nd Respondent

JUDGMENT

The Respondents were charged with the following offence:

Statement of Offence

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

Particulars of Offence

ERONI RAIKOTI, EPELI BAINOKONOKO and NACANIELI VERETAKI on the 10th day of May, 2003 at Nasinu in the Central Division robbed HARI LAL s/o KISHORE LAL of one Concorde car stereo valued at $300.00 and $30.00 cash all to the total value of $330.00 and immediately before such robbery did use personal violence on the said HARI LAL s/o KISHORE LAL.

They pleaded guilty on the 13th of May 2003. They were not told of their right to counsel.

The facts were read. They were that on the 10th of May 2003, the complainant stopped his vehicle near a canteen along River Road, Narere. The Respondents then approached him, punched him, took the items specified in the charge and ran away. The complainant received injuries. He reported the matter to the police. The Respondents were apprehended and charged. The car stereo was recovered.

The learned Magistrate then asked for a copy of the medical report and stood the matter down. The prosecution then said:

“I have been told by police at Nasinu Police Station that there is no Medical Report as there is no injuries sustained.”

The Court then said:

“The facts before me require that I peruse medical certificate. In the absence of the medical certificate I decide to convict the 3 accused persons to common assault. All first offenders.”

He then sentenced them to $50.00 fine each in default 50 days imprisonment.

The State appeals against convictions and sentences on the ground that the learned Magistrate erred in reducing the charge to Common Assault, and in demanding a copy of the medical report after the pleas of guilty.
Section 293(1)(b) of the Penal Code provides:

“(1) Any person who –

(b) robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person,

is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment.”

The section does not require proof of actual bodily harm. Indeed the mere threat of violence is sufficient to prove the charge. The only relevance of injuries is that they are aggravating factors to be taken into account for the purpose of sentence. There was no need for a medical report to be tendered although I consider that it was quite improper for the prosecutor to say, in outlining facts that injuries were sustained when in fact there were no injuries. As I have said before, prosecutors must outline facts carefully, and on the basis of the evidence in the police docket.

In this case, it was not open to the learned Magistrate to reduce the charge on the ground that he had no evidence of injuries. Further, I note that the Respondents at no time agreed to the facts which were outlined. Although the facts disclose the offence, it is necessary to ask the accused if they agree with them before entering a conviction.

In this case, the conviction cannot stand and must be set aside. The case is remitted to the Magistrates’ court before another Magistrate for facts to be outlined afresh. If the Respondents agree with the facts on the record, the offence of robbery with violence has been committed. The sentencing magistrate may then consider the sentencing guidelines of this Court in Ilaisa Sousou Cava Crim. Case HAC0007 of 2000S.

Nazhat Shameem
JUDGE

At Suva
12th September 2003