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William v State [2007] FJHC 67; HAA 110.2007 (26 October 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA 110 of 2007

Between:

JAMES WILLIAM
Appellant

And:

THE STATE
Respondent

Hearing: 19th October 2007
Judgment: 26th October 2007

Counsel: Appellant in person
Ms H. Tabete for State

JUDGMENT

The Appellant was charged with three others, with the offence of robbery with violence. It was alleged that on the 21st of April 2005 at Suva, he robbed one Hans Juergen Schilling of $10,000 Euros and immediately before such robbery used personal violence on him. The case was called on the 26th of April 2005 and the accused wanted time to brief counsel. They were remanded in custody. On the 10th of May 2005 the Appellant said that he was representing himself and elected Magistrates’ Court trial. He pleaded not guilty. He was then granted bail. On the 24th of May, the prosecution asked for an early hearing date, as the complainant wished to return to Germany. On the 2nd of June the 2nd and 4th Accused failed to make an appearance. The case was adjourned again. There were several other adjournments because of the absence of two of the accused and a hearing date was finally set for the 1st of March 2006. On that date the 2nd accused had not been produced from the Natabua Prison.

All accused were present on the 20th of March 2006. The complainant gave evidence that on the 21st of April 2005 he was standing near Caines Janif with $10,000 Euros in a blue wallet inside his left side pocket. While crossing the road with his wife, he was suddenly surrounded by four people. One lifted his arm and took his wallet, leaving him struggling. He identified the Appellant and the 3rd accused. His wife also gave evidence supporting what her husband said. She identified all four accused. In total, 6 witnesses gave evidence. One of them, a taxi driver said that the Appellant had given him Euros to change at the Western Union Office in Lami. Having heard the evidence, the Appellant and the 2nd Accused changed their pleas after consulting with their lawyer, Mr. Valenitabua. The Appellant agreed to 9 previous convictions, four of them for larceny from person, and one for robbery. In mitigation, counsel said that the Appellant lived in New Town Nasinu, and that he had inflicted no violence. $500E had been recovered.

The learned Magistrate sentenced the Appellant on the 31st of March 2006. He considered the evidence and said that although no blows had been inflicted on the complainant, the offence of robbery was completed when there was an element of force in the appropriation and a threat of force. He found that the elements of the offence were complete.

He found that the Appellant had committed the offence during the operational period of a suspended sentence imposed for robbery, on the 12th December 2003. The Appellant was unable to show any cause for committing the offence in breach of the suspended sentence. He activated one year of the 2 year suspended term and sentenced him to 6 years imprisonment for the offence itself. The sentences are to be served consecutively. The total is 7 years imprisonment.

The Appellant says that this total sentence is harsh, excessive and in excess of jurisdiction. He argued that the Magistrates’ Courts can impose sentences of up to 5 years only. He is of course not aware that the Magistrates’ Courts jurisdiction has now increased to 10 years imprisonment for one offence. He also submitted that his plea was equivocal because there was no evidence that he had inflicted violence on the complainant.

The State submits that the sentence is within the tariff for robbery with violence, that he committed the offence on tourists, that the value of the money stolen was high. However, given the lack of actual violence, she concedes that the 7 year starting point was high.

In his submissions in court, the Appellant asked if the facts disclosed robbery with violence, and submitted that his plea was equivocal. On a perusal of the evidence led, I am satisfied that it was not. The facts show that the complainant was surrounded by four men, that one took his wallet out of his pocket and another was pushing him. Two boys pressed against him so he could not move. The complainant was struggling during the incident. The learned Magistrate’s analysis of the law and the evidence cannot be faulted. The Appellant was part of a group which committed a robbery with violence. Under the doctrine of joint enterprise he was guilty even if he never touched the complainant himself. The conviction was therefore properly entered.

However, serious as it is, this offence did not include the infliction of injuries, nor was a weapon used. An appropriate starting point should have been 4 years imprisonment at the lowest end of the tariff. After adjusting for the value of the money, the group violence and the guilty plea, a sentence of 5 years imprisonment was appropriate. Although appellate courts should resist tinkering with sentences within the tariff, the difference to the Appellant, between serving a 6 year term and a 5 year term is significant. I therefore reduce his sentence to 5 years imprisonment.

The partial activation of his suspended term was however quite correct. Indeed because he committed the same offence within the operational period, he could have faced the activation of the full two year term.

I allow this appeal to the extent that he now serves 5 years imprisonment for the substantive offence, and 1 year as activation of the suspended sentence in Case 2635/03 (Suva Magistrates’ Court). He will serve a total of 6 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
26th October 2007