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Navukailomalagi v State [2007] FJHC 76; HAA103J.07S (29 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 103 of 2007

Between:

VILIVE NAVUKAILOMALAGI
Appellant

And:

THE STATE
Respondent

Hearing: 23rd November 2007
Judgment: 29th November 2007

Counsel: Appellant in person
Mr. S. Fotofili for State

JUDGMENT

The Appellant was charged with robbery with violence. On the 27th of November 2006, he was alleged to have robbed Rakesh Chandra of a brown wallet and personal items to the total value of $220.00 and immediately before such robbery used personal violence on him.

On the 28th of November he pleaded guilty before the learned Magistrate after waiving his right to counsel. The facts were that at about 1.30am the complainant was asleep at the house of the owner (for whom he was the caretaker) when the Appellant woke him up demanding cash. He refused the demand, and the Appellant struck at him, causing injuries to his right hand. The complainant then told the Appellant to take whatever he wanted. The Appellant took the items and fled the scene. He was apprehended by a security guard nearby, and was handed over to the police. Under caution, he admitted the offence.

The Appellant admitted these facts. The complainant was found to have multiple small cuts on both his hands. He was 23 years old. The Appellant was 21 at the time of the offending, and was single and unemployed. He had 4 previous convictions, one of which was for robbery with violence in January 2003. On that occasion, he received a suspended term of 9 months imprisonment. The period of suspension was 3 years imprisonment. In effect, he re-offended several months after the expiry of the suspension period.

In his sentencing remarks, the learned Magistrate referred to the fact that this was a home invasion with an offensive weapon, and that only some of the items were recovered. He sentenced the Appellant to 4 years imprisonment.

The Appellant appeals against sentence on the ground that the learned Magistrate failed to consider his guilty plea, his remorse and the fact that the complainant had attacked him first with the cane knife.

The State opposes the appeal saying that the sentence was within the tariff, and was even lenient because of the suspended sentence that had previously been imposed on him. Counsel further submits that the Appellant had not disputed the facts in the lower court, nor had he told the learned Magistrate about being attacked by the cane knife and striking back in self-defence.

Certainly, the record shows that the charge was read and explained to the Appellant, then the facts read out. The Appellant agreed that he had struck the complainant with the cane knife. He now puts forward a different version of events, but even if we are to accept this second version, his conviction is still valid. The Appellant came into the complainant’s house and demanded cash. Whether the complainant picked up the knife first, or the Appellant attacked him with it, it is undeniable that the Appellant, in the course of the robbery, struck the complainant with the knife inflicting injuries. Even if the knife was not his, the infliction of violence in the course of a robbery, constituted the offence. It matters not who picked it up first. The Appellant used violence in the course of a robbery and was properly convicted under section 293 of the Penal Code.

The learned Magistrate did not refer to the higher starting point for home invasion robberies. If he had, he would have started at 8years imprisonment. Nor did he consider the fact that the operational period of the suspended sentence expired in January 2006 and that this offence was committed only 10 months later. The 4 year term can only have been reached if the learned Magistrate put considerable weight on the guilty plea and expressions of remorse.

In these circumstances, I see no reason to reduce the Appellant’s sentence. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
29th November 2007