IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No.: HAA 137, 138 of 2007
And HAA 010 of 2008

BETWEEN:

WAQA DELAI
The Appellant

AND:

THE STATE
The Respondent

Counsel: Apellant in Person
Ms. A. Tuiteci for the State

Date of Hearing: Friday 23rd May, 2008
Date of Judgment: Friday 6th June, 2008

JUDGMENT

[1]	The appellant was charged in four separate cases with the following offences:

Case No.: 789/07

Statement of Offence [a]

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

Particulars of Offence [b]

WAQA DELAIBAU on the 14th day of July, 2007 at Nasinu in the Central Division robbed JAILESH NARAYAN s/o JAI NARAYAN of a Sony Eriction brand mobile phone valued $85.00 and immediately before such robbery did use personal violence to the said JAILESH NARAYAN s/o JAI NARAYAN.

Case No.: 790/07

Statement of Offence [a]

LARCENY: Contrary to sections 259(1) and 262 (2) of the Penal Code, Act 17

Particulars of Offence [b]

WAQA DELAI on the 29th day of June 2007 at Nasinu in the Central Division stole car parts valued $400.00 from the compound of NISHA BIBI d/o MOHAMMED HUSSEIN the property of NISHA BIBI d/o MOHAMMED HUSSEIN.

Case No.: 1075/07

Statement of Offence [a]

ABSCONDING OR BREACHING BAIL CONDITIONS: Contrary to sections 25(1)(b) and 26 of the Bail Act 2002

Particulars of Offence [b]

WAQA DELAI, on the 31st day of July 2007, at Nasinu in the Central Division, being an accused person released on bail by the Nasinu Magistrate Court with conditions, breached the conditions of such bail by not reporting to the Valelevu Police Station on the days ordered by the court without a reasonable cause.

Case No.: 1182/07

Statement of Offence [a]

ABSCONDING OR BREACHING BAIL CONDITIONS: Contrary to sections 25(1)(b) and 26 of the Bail Act 2002

Particulars of Offence [b]

WAQA DELAI, on the 13th day of September 2007, at Nasinu in the Central Division, being an accused person released on bail to appear in Nasinu Magistrate Court on the 26th day of September 2007, with conditions, failed to surrender to custody without a reasonable cause.

[2]	On 12 July 2007 the appellant appeared in the Nasinu Magistrates’ Court and pleaded not guilty to the charges. After four adjournments, on 12 October 2007 the appellant changed his pleas to guilty after waiving his right to legal counsel.

[3]	In mitigation the appellant said he was 19 years old and was single. The appellant was sentenced on 23 October 2007. 

[4]	In Case No. 789/07, the appellant was sentenced to 2 years imprisonment.

[5]	In Case No. 790/07, the appellant was sentenced to 9 months imprisonment to be served consecutively with the sentence in Case No. 789/07.

[6]	In Case No. 1075/07, the appellant was sentenced to 3 months imprisonment to be served consecutively with the sentence in Case No. 789/07.

[7]	In Case No. 1182/07, the appellant was sentenced to 3 months imprisonment to be served concurrently with the sentence in Case No. 1075/07.

[8]	The total overall sentence imposed on the appellant was three years imprisonment. He appeals against the sentence saying he is a first time, young offender and had a minimal role in the robbery.

[9]	In Case No. 789/07, the facts were that on 14 July 2007 the complainant was walking along the Kinoya Road when he was approached by the appellant and another man. They held the complainant and punched him. The complainant fell down. The appellant and his co-accused took off after stealing the complainant’s mobile phone.

[10]	In Case No. 790/07, the appellant with three others entered the compound of a different complainant and stole car parts valued $400.00. When the complainant confronted the appellant, she was threatened by the intruders.

[11]	In Case No. 1075/07, the appellant failed to report to Valelevu Police Station and in Case No. 1182/07 he failed to appear in court, in breach of his bail conditions.

[12]	In each case, the learned Magistrate correctly identified the tariff for the respective offences. The learned Magistrate gave credit to the appellant’s young age and to his pleas of guilty. However, in sentencing the appellant, the learned Magistrate took into account previous convictions as an aggravating factor. 

[13]	When the appellant pleaded guilty to the charges, the appellant had no criminal record. The learned Magistrate after convicting the appellant on one file, then used that conviction as a record of previous conviction to determine an appropriate sentence for the offences in other files. The approach was clearly wrong because the appellant was deprived of credit for a factor which the learned Magistrate erroneously considered an aggravating factor. 

[14]	The proper approach was to deal with the offences as if the appellant has pleaded guilty to the charges contained in one file. The appellant would have got some credit for previous good character as a matter of right. By taking into account previous convictions as aggravating factor when in fact the appellant had no criminal history, the appellant was prejudiced in the imposition of a just and fair sentence. The error justifies an intervention by this Court.

[15]	To reflect the appellant’s previous good character as a mitigating factor, I reduce the sentences as follows:

Case No. 789/07
Robbery with Violence – 18 months imprisonment

Case No. 790/07
Larceny – 5 months imprisonment.

Case No. 1075/07 – 1 month imprisonment

Case No. 1182/07 – 1 month imprisonment

[16]	The sentences in Cases 789/07, 790/07 and 1075/07 are made consecutive.

[17]	The sentence in Case No. 1182/07 is to be served concurrently with all the other sentences. The overall total sentence is 2 years imprisonment effective from 23 October 2007.

[18]	The appeal against sentence is allowed. 

Daniel Goundar
JUDGE

At Suva
Friday 6th June, 2008

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State