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Vulakoro v State [2010] FJHC 158; Criminal Appeal 003 of 2010 (10 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO: 003 OF 2010
CRIMINAL CASE NO: 574 OF 2009

BETWEEN:

1. JONE CAMA VULAKORO
2. SOLOMONE RABULI
3. SULIO BALEISERENE
APPELLANTS

AND:

STATE
RESPONDENT

Counsel: For 1st Appellant - Mr. P Lomaloma
For 2nd and 3rd Appellants - Mr. A Vakaloloma
For Respondent - Mr. L Sovau

Date of Hearing: 19 May 2010
Date of Judgment: 10 May 2010

JUDGMENT

The appellants 1 – 3 were charged in the Magistrates Court Labasa for the offence of Robbery with Violence and after pleading guilty they were each convicted and sentenced to 6 years imprisonment.

First appellant appeals against the sentence and second and third appellants appeal against the conviction and sentence.

I will first deal with the appeal against conviction by 2nd and 3rd appellants. On the conviction 2nd and 3rd appellants urge the following grounds of appeal.

1. That the learned trial Magistrate erred in law and in fact when he failed to advise the Appellants the right to obtain legal advice before allowing them to take their plea.

2. That the learned trial Magistrate erred in law and in fact in not appreciating that he was duty bound to advise the appellants of the implication of their plea especially when he was unrepresented.

3. That the learned trial Magistrate erred in law in fact when he failed to advise the appellants that they could seek assistance from Legal Aid Commission which is made available to them by the State when they cannot afford to pay a lawyer.

4. That the learned trial Magistrate erred in law and in fact when he convicted the appellants merely because they admitted the summary of fact and denying them right to fair trial.

The facts of this case were on 27/12/09, the three accused robbed cash and items valued $7080-00 from Adrian Ram. 1st accused entered the house of the victim through a window cutting the gauze wire and removing the glass of the windows with 2nd accused. 3rd accused was outside the house. Accused were armed with kitchen knife. 1st accused entered the victim’s bedroom and when victim woke up, the 1st accused put the knife over the victim and demanded money. Victim who was helpless gave the 1st accused all the money he had amounting to $3000. 2nd accused switched off all the lights in the house and with the mobile phone torch light he ransacked the house and passed the items to the 3rd accused who was standing outside the broken window.

Three accused spent about 15 minutes in victim’s house putting him under threat with the kitchen knife. The items robbed were some bottles of liquor, two mobile phones, a video camera, a cordless phone, a DVD and the said amount of cash value totaling $7080-00.

The three accused shared the loot. Total value of the items recovered were of $6311.25 from three accused.

All three accused pleaded guilty to the charge and also admitted the summary of facts.

It is contended on behalf of the 2nd and 3rd appellants that the appellants were unrepresented and they were denied of a fair trial. They were denied of representation.

Further no plea was taken and never asked them whether they pleaded guilty or not guilty.

Their caution interview statement was not made voluntarily and they were not explained of their rights to counsel.

Further it is urged that they were not allowed to elect the court.

When perusing the court record, it is clear that the learned Magistrate has explained the right to counsel and all three accused has opted to defend themselves.

Further it is on record clearly that the all three accused has elected the Magistrate’s Court. The charge had been explained to all the accused and they have understood the charge. They have pleaded guilty and further it is on record that the accused were not induced or forced.

Further the summary of facts were admitted by all three accused.

Therefore all those grounds the counsel urged on behalf of the 2nd and 3rd accused appellants against the conviction are untenable and the appeal against the conviction is dismissed forthwith.

Now I will deal with the appeal against sentence by all these accused appellants. On behalf of the 1st accused appellant 8 grounds of appeal are urged but in reality grounds urged are:

1. That the sentence is harsh and excessive

2. The learned Magistrate failed to follow the English authorities but the New Zealand authorities on sentencing principals

3. The learned Magistrate failed to assess the culpability

4. The learned Magistrate failed to consider the amount of stolen property found and failed to balance the principle of deterrence and rehabilitation.

On behalf of the 2nd and 3rd appellants the ground of appeal on sentence is that the sentence is harsh and excessive.

It is submitted on behalf of the 1st appellant that citing the case of Basa v State 2001 Cr App AAU24/05, 24/3/2006, that Fiji Courts should consider English cases as guidance for the appropriate term of imprisonment as the maximum penalty in England for this offence is also life imprisonment.

In Singh v State (2009) FJHC 192; Misc004.2009 4th September 2009 Justice Goundar referring to the case from England R v Driscoll (1986) 8 Cr App R(S) 121 said:

"In England sentencing range is 13 – 16 years (after a guilty plea 10 -12 years) for robbery in the home involving physical violence. In this type of case starting point is justified mainly by the high level of violence, although it is clear that longer terms will be appropriate where extreme violence is used".

The State concedes that the learned Magistrate chose the wrong starting point for home invasions. However, in the end still arrived at a justifiable sentence that was well within the tariff, if not at the lower end of the scale.

The offence of robbery with violence is a prevalent offence in Fiji. When it comes to home invasions it is common knowledge that the law abiding citizens are imprisoned behind the burglar bars fixed in their homes due to fear of home invasions. Therefore deterrent punishment should be given to such offenders.

The learned Magistrate has given sufficient and valid reasons in his judgment on taking 9 years as the starting point.

When consider the facts of this case the learned Magistrate was correct in stating the robbery was well planned. The appellants planned the robbery armed with knife entered the victims house through a window after cutting a gauze wire and removing the glass of the window.

Furthermore, they switched off the lights and searched for the items to loot by the torch of a mobile phone and the 3rd accused was outside the window to get the loot.

The learned Magistrate has considered all the mitigating factors submitted before him in his sentencing judgment. But he has not considered this offence of Robbery with Violence as a home invasion as an aggravating factor in his judgment.

It is submitted on behalf of the appellants that stolen property was found and not taken into consideration. Most of the stolen properties were found but not all. Property of value amounting to $762 were not recovered. But the learned Magistrate has reduced 3 years which is substantial for all the mitigating circumstances including part of property recovered. As aforesaid he has not considered the robbery as a home invasion which is an aggravating factor.

In the above premise the 6 years imprisonment sentence imposed by the learned Magistrate is well within the tariff, not excessive but rather lenient.

Therefore for the reasons given above appeals of the 1st, 2nd and 3rd appellants are dismissed.

Priyantha Fernando
Puisne Judge

At Labasa
10 May 2010