IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 011 of 2013

BETWEEN:

ALIPATE KOTO YAGOMATE
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A. Sen for the Appellant
Mr. S. Vodokisolomone for the Respondent

Date of Hearing: 10 March 2014
Date of Judgment: 13 March 2014

JUDGMENT

[1]	Following a trial in the Magistrates' Court, the Appellant was convicted of robbery with violence and sentenced to 6 years' imprisonment. This appeal is against conviction and sentence.

[2]	Conviction appeal

The sole contention against conviction is that the Appellant was convicted of an uncharged offence. When the Appellant first appeared in the Magistrates' Court on 8 July 2008, he was arraigned on the following charge:

Statement of Offence

Robbery with Violence – Contrary to Section 293 1) (a) of the Penal Code Cap 17.

Particulars of Offence (b)
Alipate Koto Yagomate and Samisoni Tikotani on the 2nd day of July 2008 at Nacavanadi, Savusavu in the Northern Division robbed one, Tomasi Tawake of Korean $1000.00, Fiji $330.00, Lee blue ¾, short valued at $39.00, T/shirt valued at $15.00, Bula shirt valued at $15.00, Nike Canvas, valued at $179.00, underwear valued at $5.00 all to the total value of $1,000.00 and $583.00 Fijian properties of said Tomasi Tawake and immediately before the time of such robbery used personal violence against the said Tomasi Tawake.

[3]	On 20 January 2009, the co-accused, Samisoni Tikotani pleaded guilty to the above charge and was sentenced to 4 years' imprisonment. The Appellant pleaded not guilty, and on 21 May 2012, his trial commenced. Before calling evidence, the prosecution with the leave of the Court, amended the Statement of Offence to section 293 (1) (b) of the Penal Code. The Particulars of the Offence remained the same. 

[4]	The amended charge was put to the Appellant. He pleaded not guilty and the trial commenced. The trial concluded on 23 May 2012. The learned Magistrate delivered his Judgment on 5 June 2013. In his introductory remarks, the learned Magistrate made reference to the charge by referring to section 293 (1) (a) instead of section 293 (1) (b).

[5]	Later when sentencing the Appellant, the learned Magistrate said:

"The Accused was charged with a count of Robbery with Violence contrary to Section 293 (1) (a) of the Penal Code. The accused pleaded not guilty to the charge and this matter proceeded to trial on 21 and 23 May, 2012. The accused was convicted after the trial".

[6]	Based on the above remarks, the Appellant submits that he was convicted of an uncharged offence. This contention requires a closer examination of section 293 (1) of the Penal Code. Section 293 (1) of the Penal Code states:

 "Any Person who-

(a)	Being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person; or

(b)	Robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person,
is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment."

[7]	Subsection (a) encapsulates three different scenarios:

1.	Being armed with an offensive weapon.
2.	Being together with another person.
3.	Assaults with intention to rob.

[8]	Subsection (b) applies when the robbery is committed without the use of weapon or in the company of another, but the offender uses or threatens to use personal violence on the victim either at the time of, or immediately before, or after the robbery. A charge of robbery with violence under section 293 (1) will depend on what scenario is supported by the facts. But in some cases, the facts may support more than one scenario encapsulated in subsections (a) and (b). For instance, if two people armed with a weapon rob a victim and immediately before and after the robbery uses personal violence on the victim, then a charge under both subsections can be sustained.

[9]	The charge in the present case incorporated the different scenarios under both subsections. Firstly, the robbery was committed by two people (incorporating subsection (a)). Secondly, personal violence was used on the victim immediately before the robbery (incorporating subsection (b)). 

[10]	When the charge was amended, the prosecution was required to prove beyond a reasonable doubt that the Appellant robbed the victim and, at the time of or immediately before such robbery, used or threatened to use any personal violence on the victim. The focus of the submissions by counsel for the Appellant was that the Appellant neither used nor threatened violence on the victim and that the Appellant was 'an innocent bystander' and not part of the joint enterprise to rob the victim. These submissions fly in the face of the admissions made by the Appellant in his sworn evidence that he punched the victim and when he saw money beside him, he took it (p 57 of the court record). It was open to the learned Magistrate to conclude that the Appellant punched and took the money from the victim as part of the joint enterprise to rob him and not as an innocent bystander who only took the money because it was lying beside the victim, presenting an opportunity for the Appellant to take it.

[11]	The Particulars of the Offence clearly alleged that the Appellant robbed the victim in the company of another and immediately before the robbery, used personal violence on the victim. The particulars of the offence could have sustained a charge under both, section 293 (1) (a) and as well as section 293 (1) (b) of the Penal Code. The reference to subsection (a) instead of subsection (b) in the learned Magistrate's judgment and sentence was only a technical error. The evidence supported a charge under both subsections. In my judgment, the appellant was convicted on a valid charge. The error was insignificant and did not give rise to a miscarriage of justice.

[12]	The appeal against conviction fails. 

Sentence appeal

[13]	The appeal against sentence is based on the disparity arising from the sentence imposed on the co-accused. Clearly, there is a disparity in the sentences. The Appellant received two years more than his co-accused. The question is whether the disparity can be justified (Ratumaiya v State [2006] FJCA 21; AAU0060.2005S). The co-accused entered an early guilty plea and expressed remorse. He was sentenced to 4 years' imprisonment. The Appellant was sentenced four years later after a trial to 6 years' imprisonment. The disparity arose from the fact that the co-accused entered an early guilty plea and expressed remorse. In these circumstances, the disparity was justified and the appeal against sentence has no merit.

Result	
[14]	The appeal against conviction and sentence is dismissed.

Daniel Goundar
JUDGE

At Labasa
13 March 2014

Solicitors:
Office of Messrs Maqbool & Co. Labasa for Appellant
Office of the Director of Public Prosecutions, Labasa for State