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Veiqaravi v The State [2004] FJHC 167; HAA0106-109.2004 (26 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.: HAA0106 – 109 OF 2004

BETWEEN:

NETANI TOKA VEIQARAVI
Appellant

AND:

STATE
Respondent

Counsel: Appellant in Person
Ms K. Bavou – for the State

Hearing: 28th October, 2004
Judgment: 26th November, 2004

JUDGMENT

Background

The appellant was convicted by his plea to three counts of robbery with violence and one each of larceny and unlawful use of a motor vehicle. This is his sentence appeal.

The Facts

The appellant with two accomplices embarked on a spree of taxi robberies.

In Criminal Case 275/04 at about 9.30pm on the 1st of June, 2004 the first complainant was driving his van when approached by the group. He was told to drive onto the feeder road at Waila. Along that road the appellant took out a kitchen knife, placed it against the victim’s neck and demanded cash. The group forced him out of the driver’s seat, took $20.00 and the appellant drove the van to Princess Road where it was abandoned.

He was sentenced to 3 years imprisonment.

The group struck again at about 7.00pm that night when they stopped another taxi van driver. Again they asked to be driven to Waila. On arrival at Waila the victim was beaten up. He made his escape. The appellant and his co-accused then stripped the vehicle of its car stereo and speakers. The appellant was sentenced to 12 months imprisonment for larceny and 3 months imprisonment for the unlawful use of a motor vehicle. The total sentence of one year three months was made concurrent to the 3 year sentence imposed in Criminal File 275/04.

In respect of Criminal Case No. 273/04 the group struck again when they hired a 52 year old taxi driver from Nausori town asking him to take them to Waila. When they arrived at Waila the appellant took a piece of cloth, put it around the complainant’s neck and strangled his breath out of him to a point where he lost consciousness. The group took the car radio and $30.00 cash.

The appellant received 2 years imprisonment concurrent with File 275/04.

In respect of Criminal Case No. 272/04 the same modus operandi was used. A 37 year old taxi driver from Nausori town was asked to take the group to Waila. On arrival the victim was punched and beaten up by the appellant. The group then took a taxi radio and $88.00 cash.

The appellant received 2 years imprisonment concurrent to the 3 year sentence in File 275/04.

Appeal Grounds

The appellant was reminded of his right to counsel and to apply for Legal Aid. He appeals against this sentence as a first offender saying that the three year term for this spree of violent robberies is harsh and excessive. He claims that the learned Magistrate failed to take into account his co-operation with the police, early guilty plea and lack of previous convictions.

The State’s Response

The State submits that the sentence of 3 years imprisonment is not harsh and excessive. If anything it is submitted the sentence is so manifestly lenient that I should exercise my discretion under Section 325 of the Criminal Procedure Code and increase the penalty especially in respect of Criminal File 273/04 involving the strangulation of a 52 year old man to a point of unconsciousness.

Counsel refers me to two decisions. The State v Marvick, HAC0027-028.2004, a decision of my brother Justice Gates. A total effective sentence of 3 ½ years imprisonment was imposed. The tariff decision of my sister Justice Shameem in the State v Ilaisa Sousou Cava, HAC007.2000 where her Honour details a tariff for similar offences in the range of between 4-7 years.

I had occasion to consider these decisions and others in my own decision of Koroivuata v The State, HAA0064.2004.

That case appears to be on all fours with the present appeal. I shall refer to it in more detail in my decision.

I am grateful for the diligence of State’s counsel in the preparation of her thoughtful submissions.

Decision

In Koroivuata (supra) I said:

“Violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. Taxi drivers are particularly exposed to the risk of robbery. They are defenceless victims. The risk of personal harm they take everyday by simply going about their business can only be ameliorated by harsh deterrent sentences that might instil in prospective muggers the knowledge that if they hurt or harm a taxi driver they will receive a lengthy term of imprisonment.”

In that case I declined a sentencing appeal and maintained the effective sentence of 2 years imprisonment for one offence.

I agree with State counsel’s submission that this is a case where I should use my jurisdiction to increase the sentence under Section 325 of the Criminal Procedure Code especially in relation to Criminal File 273/04. In this case a 52 year old man was taken to a remote area, had a piece of cloth put around his neck and was strangled to a point of loosing consciousness. Fortunate indeed it was that this victim was not more seriously harmed by the appellant’s brutish and wanton violence motivated only by greed.

For these reasons I focus on 273/04. I start with a sentence of 6 years imprisonment to reflect the serious nature of the attack on the victim. I would add a further two years for the fact that the appellant was accompanied in his crime by others and used a weapon albeit a simple one to effect his purpose. That totals 8 years.

I give a discount of 2 years for his co-operation with the police and early guilty plea. I allow another one year’s discount for a lack of previous offending and a further year to reflect the youth of this first offender and to reflect that some property was recovered. In all an effective sentence of 4 years imprisonment is called for.

These were separate and discrete offences deserving of cumulative sentences.

You can consider yourself fortunate that because of your youth and lack of previous offending I do not make this sentence cumulative on your other terms of imprisonment.

Accordingly, the sentence appeal is dismissed but the overall sentence is varied by adjusting the sentence given on Criminal File 273/04 upwards to a sentence of 4 years imprisonment commencing from today. All remaining sentences to be concurrent with this term.

Gerard Winter
JUDGE

At Suva
26th November, 2004