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Vunicagi v The State [2005] FJHC 222; HAA0076J.2005S (12 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0076 of 2005S

Between:

SAIMONI VUNICAGI;
JOELI NUENUE; and
NAVITALAI TAWAKE
Appellants

And:

THE STATE
Respondent

Hearing: 5th August 2005
Judgment: 12th August 2005

Counsel: Appellants in Person
Mr. A. Rayawa for State

JUDGMENT

The Appellants were charged as follows:

Statement of offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

SAIMONI VUNICAGI, JOELI NUENUE and NAVITALAI TAWAKE, on the 21st day of March, 2003 at Samabula in the Central Division robbed RAJESH PRASAD s/o Shiri Prasad of cash $200.00, taxi meter valued $285.00, driving licence valued $15.00 and a money box valued $5.00 to the total value of $405.00 and immediately before such robbery threatened to use personal violence on the said RAJESH PRASAD s/o Shiri Prasad.

The 1st Appellant was sentenced to 4 years imprisonment, the 2nd Appellant (who is a first offender) to 3 years imprisonment and the 3rd Appellant to 4 years imprisonment. They now appeal against those sentences. Their petitions of appeal were filed in the form of letters, and can be summarised as follows:

1. The sentences failed to properly reflect the pleas of guilty and the good character of the Appellants;
   
2. The learned Magistrate failed to consider the overcrowded conditions of the prisons;
   
3. The sentences failed to take into account the marginal roles played by the three Appellants in the robbery;
   
4. Other offenders convicted of the same type of offence had been treated more leniently by the courts.
   

The State opposes the appeal, saying that the learned Magistrate had imposed sentences either at the lowest end of the tariff or (in the case of the 2nd Appellant) lower than the tariff for robbery with violence.

When the case was first called in the Suva Magistrates’ Court, all three Appellants pleaded not guilty. They were granted bail and the case was adjourned for disclosure. There was further delay because the investigating officer was in Kosovo, but the court eventually ordered, on the 30th of November 2004, that the case should proceed without the investigating officer. All three Appellants then changed their pleas. The facts, which were admitted, were that the complainant was a bus driver. On the 21st of March 2003, he was driving from the Suva Bus Station to Gaji Road. The three Appellants were passengers on his bus. When they got off at Gaji Road at about 11pm, they assaulted the driver and stole from him $102 cash, a taxi meter valued at $285 and a money box valued at $5. The incident was witnessed by one Ambika Prasad. On investigation, the Appellants were interviewed under caution. They admitted the offence. The money box was recovered and the 1st Appellant identified it as the money box stolen from the complainant. The complainant received no injuries.

The 1st Appellant has one old conviction for larceny from person in 1993, for which he received a suspended sentence. The 2nd Appellant was a first offender. The 3rd Appellant had two previous convictions in 1999, for unlawful use of punt and for housebreaking.

In mitigation the 1st Appellant said he was 32 years old and married. He worked as a dock worker and was willing to compensate the driver. The 2nd Accused said he was 21 years old, a casual labourer and also willing to compensate the driver. The 3rd Appellant was 33 years old of Kavala, Kadavu. He is married with two children and was a villager. He said that he also was willing to compensate the driver.

In his sentencing remarks, the learned Magistrate said that this incident was senseless and shameful, and that the Appellants had gained nothing from robbing a driver who earned his living by working hard. He sentenced each as I have already set out in this judgment.

The Appellants now say that the sentences are harsh and excessive and that no credit was given for the mitigating factors, or for their marginal role in the robbery. It is correct that the learned Magistrate did not refer specifically to the mitigating factors. However, the sentences passed can only be a reflection of those mitigating factors. Further, the Appellants said nothing to him about their marginal roles in the offence. Indeed, they admitted the facts which stated that they were the only offenders.

In court, at the hearing of this appeal they told me that two other men had actually done the assaulting and the robbing, but that they had taken part of the stolen money. However, the Appellants said nothing of this in the lower court. Indeed they made admissions in relation to the commission of the robbery, and the record does not indicate that the pleas might have been equivocal.

Assuming that the learned Magistrate picked 5 years as his starting point to reflect the value of the stolen property and the absence of injury, he would have increased the sentences by 2 years to reflect the attack on a vulnerable public service driver, the attack at night, the attack by three men and the non-recovery of the stolen money and taxi meter. The reduction of that term for the 1st Accused would have reflected his guilty plea and his good character. The old conviction in 1993 should have been disregarded. The resulting sentence of 4 years imprisonment would reflect all of these mitigating factors. The 2nd Appellant was entitled to further discount for his youth. As a 21 year old, it is likely that he was influenced to offend by his co-accused who are both in their 30’s. The 3 year term is lower than the tariff, but is correct in principle because of the 2nd Appellant’s comparative youth. The 3rd Appellant was not entitled to discount for good character, but his previous convictions, now 6 years old are relatively minor and do not suggest a pattern of hardened criminal conduct. The 4 year term imposed on him, is at the lowest end of the tariff and is not harsh or excessive. It is inarguable that the prisons are over-crowded, but the answer cannot be to give non-custodial sentences to those who commit serious offences and who deserve deterrent sentences.

The drivers of buses, taxis and mini-buses are particularly vulnerable to attack. They often travel to isolated parts of Suva, because that is what is required of them, in their jobs. Without those drivers, the people of Suva would not be able to send their children to school, their adults to work, their sick to hospital and their families to worship. These drivers provide an essential service, and they are often the victims of vicious attacks by robbers. As the learned Magistrate correctly observed, it is the duty of the courts to ensure that sentences passed reflect the public’s disapproval of such conduct. Thus the tariff for robbery with violence.

For these reasons, this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
12th August 2005