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Bote v The State [2005] FJHC 16; HAA0100J.2004S (28 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0100 OF 2004S

Between:

PAULIASI BOTE
Appellant

And:

STATE
Respondent

Counsel: Mr. A. Vakaloloma for the Appellant
Mr. P. Bulamainaivalu for State

Hearing: 21st January 2005
Judgment: 28th January 2005

JUDGMENT

The Appellant was convicted and sentenced to two counts of robbery with violence on the 7th of October 2003. He appeals against his total sentence of 8 years imprisonment, which was ordered to run consecutive to his terms of imprisonment in Case 1884/03. Because of this order, he is in effect, serving a term of 10 years and 4 months.

The charges, which related to one incident of home invasion (but with two victims), read as follows:

First Count

Statement of Offence

Robbery with Violence:- Contrary to section 293 (1)(b) of the Penal Code, Act 17.

Particulars of Offence

PAULIASI BOTE and AVIKASH BHAN s/o JOYTENDRA BHAN on the 5th day of August, 2003 at Suva in the Central Division, robbed PETER BOSHIER of 1 Laptop valued at $1,100.00, I Transformer valued at $330.00, 2 Mobile Phone valued at $400.00, 1 Pair Sunglass valued at $220.00, 1 Kitchen Knife valued at $10.00, 1 wallet valued at $33.00, I Calculator valued at $110.00, 1 Sports Bag valued at $10.00, 1 Pair Binoculars valued at $165.00, 1 Camera valued at $880.00, I Radio valued at $66.00 and cash $374.00 to the total value of $3,688.00 and at the time of such robbery did use personal violence to the said PETER BOSHIER.

Second Count

Statement of Offence

Robbery with Violence: Contrary to section 293 (1)(b) of the Penal Code, Act 17.

Particulars of Offence

PAULIASI BOTE and AVIKASH BHAN s/o JOYTENDRA BHAN on the 5th day of August, 2003 at Suva in the Central Division, robbed SHERYL BOSHIER of 1 Pair Earing valued at $17.00, 2 Ladies Wrist Watch valued at $300.00, I Gold Bracelet valued at $1,100.00 and 1 Gold Bangle valued at $1,100.00 to the total value of $2,517.00 and immediately before such robbery threatened to use personal violence on the said SHERYL BOSHIER.

CASE NO. 1884/03

First Count

Statement of Offence

Unlawful Use of Motor Vehicle: Contrary to Section 292 of the Penal Code Act 17.

Particulars of Offence

PAULIASI BOTE and others on the 25th day of August, 2003 at Suva in the Central Division unlawfully and without colour of right but not as to be guilty of stealing took to their own use a private car registration number DT 684 the property of MOSESE SIKIVOU.

Second Count

Statement of Offence

Conspiracy to commit a Felony: Contrary to section 385 of the Penal Code Act 17.

Particulars of Offence

PAULIASI BOTE on the 25th day of August, 2003 at Suva in the Central Division conspired with others to commit a robbery at the Castaway Hotel in Nadi.

The Appellant pleaded guilty to all counts as did his co-accused. The facts in case 1929 were that on the 5th of August 2003, Peter Boshier and his wife Sheryl were in their home at 6pm, when the Appellant and his accomplice entered the house by the rear door and threatened them with a knife. One of the offenders punched Peter Boshier in the face causing him several facial injuries including injury to the left eye. The items specified in the charges to the total value of $3,698.00 were stolen. After taking the items, the two men pointed the knife at Sheryl Boshier, and forced her to hand over to them her jewellery to the total value of $2,517.00.

The Appellant and his accomplice were apprehended and interviewed. They both confessed to the charges.

Property worth $2,256.00 was recovered. The Appellant, who was represented by counsel, admitted these facts. In mitigation counsel said that the Appellant was 27 years old and unemployed, living at Jittu Estate with his sister. He committed the offence because he needed the money, he co-operated with the police and expressed remorse.

The learned Magistrate heard a victim impact report from the victims, who stated that they lost their sense of security and dignity in their own home, as a result of the robbery.

In a detailed and well-reasoned sentence, the learned Magistrate set out the tariff for robbery with violence in Fiji. In particular, she referred to the guideline judgments of the High Court and Court of Appeal in Apenisa Ralulu v. State Cr. App. AAU0009 of 1995S and State v. Ilaisa Sousou Cava HAC0007 of 2000S. She said that the appropriate sentence should fall within a range of 4 to 8 years, but that because of the jurisdiction of the Magistrates’ Court (then limited to 5 years on one count and 10 on two) she was only able to pass sentences of up to 5 years for each offence. She sentenced each accused to 4 years on each count, to be served consecutively with each other. The total sentence was 8 years imprisonment to run from the dates they were first remanded. She took all mitigating and aggravating circumstances into account. The Appellant has a number of previous convictions, some of which are for robbery with violence. His last conviction for robbery with violence was on 27th November 2000. He received a 4 year term of imprisonment, which must have been just served (with one-third remission for good behaviour) when the Appellant committed these offences.

On hearing counsel for the Appellant it appears that he has no real quarrel with the 8 year term of imprisonment but says that because the Appellant is serving another term of imprisonment on case 1884/03, his total term of 10 years and 3 months offended the totality principle.

In Criminal Case 1929/2003, the Appellant was charged on one count of unlawful use of motor vehicle on the 13th of August 2003. He was sentenced to 4 months imprisonment consecutive to the terms being served. In Criminal Case No. 1884 of 2003, he was sentenced to 2 years and 4 months on one count of unlawful use of motor vehicle, and one count of conspiracy to convict a felony. In the latter case, he unlawfully took the car of one Mosese Sikivou. The facts read as follows:

“On the 25th August 2003, complainant Mosese Sikivou owner of DP 684 parked his car at Extension Street and found car later in the morning not in his garage. He reported matter to Police. On investigating matter motor vehicle was sighted at Nadi with Accused and two others. Police pursued Accused, he was brought to Central Police Station and interviewed and charged for two counts for unlawful use of Motor Vehicle and conspiracy to commit a robbery at Castaway Hotel. They then used motor vehicle as per Count 1. Not much damage to motor vehicle. Recovered. Accused understand fact and admit fact.”

The Appellant then mitigated, and was advised to get legal advice. After a number of adjournments a lawyer for legal aid did appear and sentence was delivered. The record states:

“Count 1 - 4 months

Count 2 - 2 years imprisonment concurrent to Count 1 consecutive to your serving terms.”

I have said on many occasions that prosecutors should outline facts with care, ensuring that the facts disclose all the elements of the offence. I have similarly said that Magistrates should scrutinise facts with care, particularly in cases where the accused is unrepresented. This is because the facts may not disclose the offence charged, and any conviction entered may be invalid. This was the case in this matter. The facts certainly disclosed the unlawful use of the vehicle, but they did not disclose a conspiracy. With whom did the Appellant conspire, and to do what act or acts which might constitute a robbery? We do not know. All the facts disclose is that the police charged the Appellant with a conspiracy. But the facts do not disclose any such conspiracy. Ms Nair, who might have recognised the failure of the facts to disclose a conspiracy did not appear until the day that sentence was delivered, when the sentencing hearing was over, bar the shouting. Unfortunately the Appellant was not told of his right to counsel when he was first brought to Court. He was told after facts and mitigation had been heard. Clearly the conviction on Count 2, for conspiracy to commit a felony cannot stand. I quash conviction and sentence on Count 2, and order that the matter be remitted to the Magistrates’ Court for facts to be taken afresh. The conviction and sentence on Count 1, stands.

The sentence the Appellant must therefore serve in total at present is 8 years and 8 months. Not only are these sentences individually correct in principle, they are also proportionate to the total offending. If the learned Magistrate had not been constrained by her limited jurisdiction, she might have sentenced the Appellant to 8 years on each Count to be served concurrently. This was a serious case of a home invasion, leaving one victim with facial injuries and both victims in a state of psychological trauma and fear.

I consider the total sentence of 8 years and 8 months to be correct in principle. However, I quash the 2 year term on Count 2 of Criminal Case 1884 of 2003 and remit the matter to the Magistrates’ Court for facts to be reheard. Whether or not a concurrent term is imposed or a consecutive one depends on the views of the presiding Magistrate about the seriousness of the alleged conspiracy, the scale of the planned offence and any link to Case 1929 of 2003.

This appeal succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
28th January 2005