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Damuni v The State [2005] FJHC 376; HAA0137J.2005S (2 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0137 of 2005S

Between:

SIMIONE TEMO VOSABECI DAMUNI; and
SEMI RATUMAIYALE
Appellants

And:

THE STATE
Respondent

Hearing: 25th November 2005
Judgment: 2nd December 2005

Counsel: Appellants in Person
Ms L. Lagilevu for State

JUDGMENT

The Appellants with two others were convicted of robbery with violence on the 27^th of May 2005. They were sentenced to 2½ years imprisonment. They now appeal against sentence on the ground that it is harsh and excessive.

They appeared before the Suva Magistrates’ Court on the 23^rd of May 2005. They pleaded guilty after they waived their right to counsel. The facts were that on the 21^st of May 2005 at Deuba, they broke into the villa of one Ellaine Burns Ewing, a 70 year old woman. She was alone at home and asleep when they broke in by tearing the flyscreen in the sunroom. They entered her bedroom and held a pair of sharp pointed scissors to her neck. They asked for cash and disconnected her telephone line. They then stole a number of items to the total value of $3186.00. After they left, the victim asked for assistance at a neighbour’s house. The matter was reported to the police. The Appellants and their accomplices were apprehended the same night. They were interviewed under caution and gave some of the stolen items to the police. They were charged with robbery with violence.

These facts were admitted. The 2^nd Appellant had 5 previous convictions for larceny offences for which he had received non-custodial sentences.

The 1^st Appellant in mitigation said he was 21 years old, single and unemployed. He expressed remorse. The 2^nd Appellant was also 21 years old and unemployed. He agreed that he had re-offended whilst under a binding-over order.

Sentence was delivered on 27^th May 2005. On the grounds that there was no serious injury and almost all items were recovered, the learned Magistrate picked a starting point of 4 years imprisonment. After adjusting for mitigating and aggravating circumstances he arrived at a sentence of 2½ years imprisonment. In relation to the 1^st Accused who was a first offender (and who did not appeal), he sentenced him to 2 years imprisonment.

The Appellants say that undue weight was placed on previous convictions, and insufficient weight was placed on the guilty pleas. State counsel submits that the sentences were correct in principle, and indeed fell below the tariff for robbery with violence.

I agree. This was a case of a home invasion on an elderly lady. The case warranted a higher starting point, but because of the lack of any injury, the learned Magistrate started at the lowest end of the tariff. The Appellants were fortunate in that respect. Indeed the sentencing remarks show that the learned Magistrate reduced the sentence by 3 years to reflect guilty pleas and recovery of the property. I see no error in his approach.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd December 2005