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Tuitatava v The State [2004] FJHC 466; HAA0108.2004L (23 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0108 OF 2004L

ILAITIA TUITATAVA

v.

THE STATE

Appellant in Person
Mr. Nand for the State

Hearing & Ruling: 23 September 2004

EXTEMPORE RULING

The appellant in this matter was dealt with by the Learned Magistrate at Lautoka, on the 3^rd November 2003 after he pleaded guilty to one count of unlawful use of a motor vehicle and one count of robbery with violence. After admitting the facts as presented to the court, the appellant was sentenced to imprisonment for 6 months on the 1^st count and 2 ½ years on the 2^nd count. Both periods of imprisonment were to be concurrent with a 2 years sentence, he was then serving, which sentence had been imposed on the 29^th August 2003.

The facts as presented to the court might briefly be stated that on the 5^th January 2001, the accused and 2 others saw a car registration number AW 847 was parked. The owner was at work. One of the accused opened the car and started it with a key. They had masks. They used the car unlawfully. They entered Fashion World Shop and robbed Thakor Dass. They were armed with knives and sticks. They threatened the staff and went to the rear of the shop. The owner was intimidated. He gave his wallet with $20.00 cash. The accused took it forcefully with others. He took cash from the till at $1800.00. After the robbery of the cash and wallet, the three then left in the car but it was being unlawfully used. The car was abandoned, they then ran away, arrested and the police found a wallet on this accused, that is the appellant. On being interviewed, the accused admitted the robbery with violence and the unlawful use of a motor vehicle. A $126.24 was recovered from the accused.

The Court of Appeal in Raymond Isikeli Singh & Others v The State – Crim. AAU0008 of 2000S considered appropriate penalties for the offence of robbery with violence. There the court noted that in this country, robbery with violence carries a maximum penalty of life imprisonment and considered authorities from New Zealand which indicated that starting points for serious armed robbery of commercial premises start at 6 or more years and where there is a greater risk of harm or actual violence is used, a starting point was said to be 8 years or more. The court noted that in the case of very serious armed robberies, a starting point of about 10 years would be appropriate. The court also confirmed that starting points are in fact no more than that.

When one looks at those penalties and the facts as accepted in this matter, it is difficult to conclude that the penalty imposed by the Learned Magistrate was not in fact lenient.

This court can only interfere with the penalty imposed by the Learned Magistrate in certain defined circumstances. The only relevant circumstance is that the penalty is manifestly wrong. I am of the view that the penalty imposed by the Magistrate is not manifestly wrong and accordingly, I see no basis whatever for interfering with the Learned Magistrate imposed.

The appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
23 September 2004