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Waqasaqa v The State [2005] FJHC 115; HAA0061.2004 (20 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0061 OF 2004

BETWEEN:

JOJI WAQASAQA
SARWAN KUMAR
Appellant

AND:

STATE
Respondent

Counsel: Both Appellants - In Person
Mr. P. Bulamainaivalu – for State

Hearing: Thursday 5th April, 2005
Judgment: Friday 20th April, 2005

JUDGMENT

Introduction

The appellants pleaded guilty and were convicted of the offences of unlawful use of a motor vehicle and robbery with violence contrary to sections 292 and 293(1)(b) of the Penal Code (Cap. 17).

Joji Waqasaqa received a custodial term of 7 years. Sarwan Kumar received a custodial term of 8 years.

They lodged their petition of appeal on the 18th of March 2004 against both conviction and sentence.

At the hearing of the appeal Mr. Waqasaqa withdrew his appeal against conviction and proceeded only in respect of his sentence. Mr. Kumar maintained his appeal on both grounds. The hearing of this appeal was delayed while both appellants exhausted their application for legal aid. They were provided with the usual constitutional right warning at every appearance. At the hearing of their appeal they elected to proceed alone. They had each filed lengthy and helpful written submissions. They relied on their written submissions for the appeal. In addition Mr. Waqasaqa emphasized that he did not use violence during the offence and thought that his sentence should be reduced because his early guilty plea was not taken into consideration.

The State replied with helpful written submissions.

Facts

The accused were involved in a very professional and well planned robbery outside a bank. The group stole a vehicle a day before the robbery, painted it over to hide the business owner’s logo and printed new vehicle number plates to disguise its registration. Armed with knives and empty beer bottles they confronted the complainant, overpowered him, intimidated security guards and made of with a little over $66,000.00. The stolen car was ditched. The police only managed to recover $8,931.21 from the house of Mr. Waqasaqa. The accused when arrested co-operated with the police and entered early guilty pleas.

Conviction Appeal – Kumar

Mr. Kumar has failed to demonstrate by evidence to my satisfaction that his plea was in fact equivocal. He blandly relies on generalized statements to support the contention that he was careless and ambiguous with his plea. That is not sufficient.

Rather on inspection of the record I find that this appellant’s plea was unequivocal. The record demonstrates:

1. That the appellant waived his right to counsel and indicated he was representing himself.
   
2. The appellant had the charges read and explained to him. He acknowledged he understood them and yet he pleaded guilty.
   
3. He elected Magistrates Court trial.
   
4. The summary of facts was admitted.
   
5. He mitigated his penalty promised not to re-offend again.
   

The cautious approach for unrepresented accused described in IRO v R [1966] 12 FLR 104 (FCA) was well respected.

The conviction appeal by Mr. Kumar is dismissed.

Sentencing Appeal

Each appellant has sought by his submissions to convince me that the sentence passed against them by the learned Magistrate was manifestly excessive. That well-worn phrase simply raises the issue of whether this sentence is completely out of proportion for the offending. My learned sister Justice Shameem reviewed sentencing for the offence of robbery with violence in the State v Cava, HAC0007.2000S.

At page 5 of that judgment her honour reviewed the New Zealand Court of Appeal decision of Moananui. Her honour, correctly in my view, commented that sentences for robberies involving weapons should range from 4 – 7 years with the upper end being reserved for armed offences against banks, shops, post offices or service stations. Her honour went on to comment that a higher sentence would be justified where particularly aggravating circumstances exist such as the severity of injuries to complainants, the value of the property stolen, multiple offences and previous convictions for similar offences are found.

In this case condign punishment was properly reserved by the learned Magistrate to the major offending. In a well constructed and appropriate judgment the learned Magistrate fixed a starting point of 6 years. By inference the penalty was adjusted up to reflect the aggravating factors and then reduced to reflect the mitigating features particularly of co-operation with the police and an early guilty plea. There was no error in the learned Magistrate picking a starting point of 6 years for this offending. After aggravation I infer that the total imprisonment term would have been 9 years. This is consistent with the Court of Appeal’s observations in Singh (and Others) v State, AAU0008 of 2000S.

In my view the best mitigation is an early guilty plea. Courts have often recognized that sparing victims the agony of re-living the terror of the event through an adversarial process in trial deserves full recognition. In addition the assistance to the due process of justice by sparing the expense of trial deserves a significant discount.

Against that total term an appropriate discount needs to be given for the early guilty plea and co-operation with the police. A one third discount would appear to be appropriate reducing the sentence then to 6 years imprisonment. I agree that any other mitigating factors are balanced out against the aggravating features of the crime. I see no reason to interfere with the learned Magistrate’s decision in respect of the minor offence of an unlawful use of a motor vehicle contained in count 1. That may remain a concurrent term of 6 months.

I also consider that the learned Magistrate was correct in respect of Mr. Waqasaqa’s past offending. He had one appearance on a set of relatively minor robberies in 1991 and was sent to jail for 9 months. He deserves an additional discount for his clear criminal record over a period of 12 years. In this regard parity of sentencing is not required as this difference distinguishes him from his co-offender (cf Singh (supra) p.11).

Conclusion

The conviction appeal for Mr. Kumar is dismissed. The sentencing appeal for Mr. Kumar is granted. The sentence in the court below is quashed and substituted with one of 6 years in respect of count 2 and 6 months in respect of count 1 to be served concurrently an effective term of 6 years imprisonment.

In respect of the sentencing appeal by Mr. Waqasaqa the sentence in the court below is quashed and substituted with one of 5 years in respect of count 2 and 6 months in respect of count 1. Those terms to be served concurrently an effective term of 5 years imprisonment.

Gerard Winter
JUDGE

At Suva
Friday 20th May, 2005