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State v Tamanitokula [2005] FJHC 36; HAA0006J.2005S (25 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0006 of 2005S

Between:

THE STATE
Appellant

And:

1. JONE TAMANITOKULA
2. SAMUELA UENAVANUA
3. JITOKO BULI
4. RUSIATE DUMARU
Respondents

Hearing: 18th February 2005
Judgment: 25th February 2005

Counsel: Mr. D. Toganivalu for State
Respondents in Persons

JUDGMENT

The Respondents were jointly charged with robbery with violence as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

JONE TAMANITOKULA, SAMUELA VUENAVANUA, JITOKO BULI, RUSIATE DUMARU and another, on the 1st day of May 2004, at Nasinu in the Central Division, robbed SANJAY DAYAL s/o Shiu Mangal of cash $10.00, a wrist watch valued at $60.00 and a Nokia brand mobile phone valued at $363.00 to the total value of $433.00 and at the time of such robbery did use personal violence to the said Sanjay Dayal s/o Shiu Mangal.

They were each sentenced to 2 years imprisonment suspended for 2 years. The Director of Public Prosecutions appeals against these sentences saying that they are wrong in principle and manifestly lenient.

The Respondents originally pleaded not guilty. The complainant gave evidence on the 4th of August 2004. He said that on the 1st of May 2004, he left a friend’s house, where he had been watching rugby, some time after 9.30pm. He was walking towards the Ram Sami Poultry Farm at the Tuirara sub-division, when one of the Respondents approached him and asked him for a cigarette. He took out his cigarettes when the other man grabbed the whole packet and asked him for loose change. The complainant took out $2.10 and gave it to him. The other man then began to harass him, touching his pockets and his mobile phone. He swore at the complainant and swore and punched him. When the complainant tried to run away, he was held by the collar of his shirt and the other three Respondents came up to them and tried to push him inside a bush. In the struggle, his T-shirt was pulled over his face and he was beaten by the four men, as they held him to the ground. They assaulted him for 10 minutes and took his purse, which contained $12, his wrist watch and his mobile phone. While they were assaulting him a taxi came by but the robbers chased him away. The driver drove off, but returned after a while with two police officers. The officers arrested two of the four assailants. They were the 1st and 4th Respondents.

As a result of the attack, the complainant received multiple abrasions on his forehead and right upper extremity as well as swelling on the back of his head. According to the doctor who examined him, he was distressed as a result of the attack and the injuries.

Also giving evidence was Police Support Officer Amania Seru of the Tacirua Police Post. On the 1st of May 2004, he was on duty at the Tuirara Police Post when a taxi driver reported that some Fijian boys were robbing an Indian man at the junction of Pritam Singh Road. He and another officer boarded the taxi and went to the scene of the robbery. There they saw 4 boys sitting on top of an Indian man. The police officers got out of the taxi and the boys scattered. The police managed to catch two of them, Respondents 1 and 4, not far from the scene.

Cpl. Kaiava gave evidence that he dialled the complainant’s mobile phone number. It was answered and although no one spoke, he could hear a conversation at the other end. A vehicle must have approached and someone called “Mudo” to the persons walking and offered them a lift. The persons said it was alright, and that they would walk. The mobile then went off. The 1st and 4th Respondents said that “Mudo” was a nickname for the 2nd Respondent

The case was then adjourned to the 30th of August 2004 for continuation. On that day, all Respondents pleaded guilty. They were convicted, and asked for a short adjournment to allow them to speak to the complainant. They did so, and promised to pay him $600 as compensation. They paid him $240 on that day and the case was adjourned to the 29th of September 2004, and then to the 19th of October 2004. On the 19th of October, Mr. Fa for the Respondents said that they had paid the complainant $510.00 but that they wanted time to find the balance. Sentence was further adjourned.

On the 23rd of November, the Respondents had raised a further $35.00 and Mr. Fa himself paid the balance of $5.00. The learned Magistrate then delivered sentence.

He said that the offence of robbery with violence was not reconcilable but that compensation to the victim was a strong mitigating factor. He said that the episode was arrogant and disrespectful and had led to inconvenience to others, especially their relatives who had raised the $600 compensation. He said that although the 1st and 4th Respondents were first offenders, the 2nd Respondent had two previous convictions, for burglary and robbery and the 3rd Respondent had been convicted in 1998 of assault. In the circumstances, he decided not to impose a sentence within the tariff for robbery with violence, but to impose a 2 year sentence, suspended for 2 years for each of the Respondent.

State counsel, at the hearing of the appeal said that the tariff for robbery with violence, was 4 to 7 years. He said that there was no early guilty plea, that there were injuries caused to the complainant and that the $600 compensation had in fact been paid not by the Respondents but by others.

The Respondents all expressed remorse and said that the victim had forgiven them. Of all of them, the 1st and 4th Respondents are students. The 4th Respondent is a 5th form student at Lami High School.

I can understand completely, the learned Magistrate’s deep concern for the 1st and 4th Respondents, who are young first offenders and who appear to have committed the offence as a result of peer pressure fuelled by alcohol. However, I consider that robbery with violence is an offence of such seriousness that the public interest demands that a starting point be picked from within the tariff. It is commendable that the victim was compensated, but why did the Respondents wait until 4 months had lapsed, to offer compensation? Why did they initially plead not guilty and waste the court’s and the complainant’s time, if they were truly remorseful? Acceptance of guilt, forgiveness, compensation, reparation and reconciliation go together. They are concepts which can be used to excellent effect in the criminal justice system, because they help to heal wounds and encourage the offender to accept responsibility for their deeds. However, compensation and reconciliation are of no value if they are used in order to escape a custodial sentence, and do not reflect remorse and acceptance of fault.

In this case, the learned Magistrate should not have adjourned the case repeatedly to allow the Respondents to raise funds. Further, he should have considered the Respondents’ failure to consider compensation earlier and their lack of remorse or acceptance of guilt until months after the event. In the circumstances, far too much weight was given to the compensation. There was no good reason for departing from the tariff.

The circumstances of this case justified a starting point of 5 years imprisonment. After taking into account all aggravating circumstances including the injuries inflicted, the group violence, the use of a racial slur by one of the Respondents and the length of the attack, I would increase this to 6 years imprisonment. For the 1st and 4th accused, considerable discount should be given for good character, youth and the fact that they are students. Sentences of 2 years imprisonment would be justified for them, even though it is well below the tariff.

For the 2nd and 3rd Respondents, no such discount can be considered. Both have a history of violent offending. However, some discount is due to them for the compensation and the eventual guilty pleas. I would reduce their sentences to 3 years imprisonment.

Their sentences are therefore as follows:

Respondent 1 - 2 years imprisonment;

Respondent 2 - 3 years imprisonment;

Respondent 3 - 3 years imprisonment;

Respondent 4 - 2 years imprisonment.

I decline to suspend the sentences of the 1st and 4th Respondents. The offence is one which is so serious, that the public interest and the concerns of the community are of paramount importance. Although it is important to keep first offenders out of prison, and although the complainant has reconciled with the Respondents, there is a duty on the courts to ensure that sentences are passed which reflect the seriousness of the offence. The need to pass fitting sentences for robbery with violence, an offence of great concern to the community, outweighs even the views of the victim and the youth and good character of the Respondents. If this case was one where only one offender committed the offence, inflicting no or minimal injuries for a small sum of money, I might have been justified in imposing a non-custodial sentence. However this is not such a case. It is an example of gang violence involving significant injuries. In the circumstances, there is no alternative to a custodial sentence for all Respondents.

The Director of Public Prosecutions’ appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
25th February 2005