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Vakatalai v The State [2005] FJHC 109; HAA0009-10.2005 (11 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0009-10 OF 2005

BETWEEN:

TEVITA VAKATALAI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. W. Kuruisaqila – for the State

Hearing/Decision: 11th May, 2005

EX TEMPORE RULING

The background to the matter is that this appellant was charged with 2 counts of robbery with violence contrary to section 293(1)(b) of the Penal Code Act (Cap.17). These charges relate essentially to street thefts of mobile phones and wallets on the same day to a value of $319.00 and $170.00.

The appellant was formally charged on the 13th of September 2004. He was sentenced on the 24th of November 2004 to 18 months imprisonment for each count to be served concurrently. However, in addition a suspended sentence of 6 months was activated. The total sentence was therefore 2 years and against this he appeals.

The Appeal Grounds

He brings his appeal primarily on the grounds that the sentence was harsh and excessive. He elected to proceed on his own before me unrepresented. He was unable to advance his grounds beyond the simple plea that he has learnt his lesson from his time spent in jail and he wishes to be released to complete his education. He promises not to re-offend ever again.

Sentencing Principles

The Fiji Court of Appeal in Raymond Sikeli Singh & Others v The State, Criminal Appeal No. AAU0008 of 2000 judgment of 2004 suggested guidelines for judges when sentencing on robbery with violence cases. These guidelines are based around the New Zealand decisions of The Queen and Moananui [1983] New Zealand Court of Appeal and also The Queen and Mako [2002] NZLR 170. It is clear from both of those decisions that robbery with violence will inevitably end up with fully custodial sentences. The Moananui and Mako decisions make it clear that for street robberies a low range of 4 to 7 years is an appropriate starting point where no weapons are used.

The learned Magistrate when sentencing the appellant took into account the appropriate tariff. He took into account the fact that this was a serious and prevalent offence but applied a significant discount to reflect the mitigating circumstances. The mitigating factors of a clear guilty plea, recovery of the mobile phones and the youth of the offender were in my view adequately recognized by a significant reduction from the starting point.

As to the activation of the suspended sentence the earlier offending committed on the 5th of March 2004 was this young man’s first robbery with violence. A 6 months term of imprisonment was imposed and suspended for 18 months. It is clear that during the period of that suspension these offences occurred. He did not learn from this punishment that society expects better of him. It was only appropriate and indeed lawful that the learned Magistrate fully activate the suspended sentence.

Conclusion

For all of these reasons I dismiss the sentencing appeal. The sentence was if anything lenient.

Gerard Winter
JUDGE

At Suva
11th May, 2005