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Vosalevu v The State [2006] FJCA 29; AAU0002U.2005S (14 July 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0002 OF 2005S
(High Court Criminal Action No. HAC 0023 of 2003S)

BETWEEN:

TOMASI VOSALEVU
Appellant

AND:

THE STATE
Respondent

Coram: Barker, JA
Henry, JA
Scott, JA

Hearing: Wednesday, 12 July 2006, Suva

Counsel: Mr T. Fa for the Appellant
Ms A. Driu for the Respondent

Date of Judgment: Friday, 14 July 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] The appellant was convicted on eleven charges following trial in the High Court before a Judge and assessors. He had faced two charges of robbery with violence, one of unlawful use of a motor vehicle, one of carrying arms and ammunition with intent to commit an offence, and seven of criminal intimidation. He was sentenced to 9 years imprisonment on the two counts of robbery with violence, 5 years imprisonment on the count of carrying arms and ammunition, one year’s imprisonment on each of the counts of intimidation, and four months imprisonment on the count of unlawful use of a motor vehicle. All terms were ordered to be served concurrently, but backdated to 12 November 2003 to represent time spent in custody awaiting trial. The Judge also ordered post release supervision. The present appeal is against sentence.

[3] The evidence established that at about 10 am on 11 November 2003 four masked men arrived at the Bank of Baroda premises in Main Street, Ba Town in the Western Division. The vehicle in which they arrived had been taken unlawfully. They were carrying weapons, namely a rifle, a pistol, and a cane knife. While one stood front outside, the others entered the building, threatened the staff and stole $60,299.18 They also stole the mobile phone of one of the staff members. They then left the premises in the same vehicle, having fired several shots as they sat in the vehicle. Two police officers who had been informed of the robbery followed the offenders’ vehicle for some distance, stopping when it doubled back. One of the occupants of the vehicle pointed a gun at them and threatened to shoot him. The offenders also fired at other police officers who were involved in the attempt to apprehend the robbers, fortunately without injuring anybody. The offenders managed to make good their escape.

[4] In the early hours of the next morning, one Joseva Ratu saw someone whom he described as a stranger, shone a torch on the face and was than threatened with a cane knife. A scuffle ensued, and a number of villagers arrived and proceeded to attack the stranger who received facial injuries. The police arrived, and the stranger, who was the appellant, was arrested. He was subsequently interviewed and then later charged with the present offences.

[5] This was very serious offending. Four persons were involved in what was a planned operation. Loaded firearms were used. Shorts were fired at the police station and in the main streets of the town. There was significant danger to the police and to the public. The stolen money remains very largely unrecovered. There are no mitigating factors.

[6] The appellant has a lengthy list of previous offending. It includes a sentence of 18 years imprisonment imposed in Australia in 1986 on a series of offences, including robbery. Following his release and return to Fiji, he was sentenced to 5 years imprisonment in February 1995 for robbery with violence.

[7] In Basa v. The State Criminal Appeal No. AAU0024 of 2005, this Court observed that the earlier decisions in which New Zealand cases have been used as guidance in assessing appropriate penalties for robbery with violence (such as Moananui [1983] NZCA 66; [1983] NZLR 537) may need to be reconsidered. Under those decisions a "starting point" is suggested at 6 or more years, increasing to 8 or more years where there is a greater risk of violence or harm.

[8] The present appeal must be considered in the light of the observations in Basa. We are concerned with the totality of this offending, its overall seriousness being apparent just from the short summary we have earlier given. Applying proper principles, it is impossible to say that an effective sentence of 9 years was excessive – if anything is to be classed as lenient. Mr Fa for the appellant responsibly recognised this, but submitted that the injuries the appellant had suffered at the hands of the villagers immediately before his arrest justified a reduction. We are unable to accept that submission. No medical report has been provided, but we understand there were moderately severe facial injuries which required hospital treatment for some five days, but no permanent effects or disability has resulted. We do not think this incident should have had any impact on sentencing in the circumstances of this case. It did not merit an adjustment.

[9] There is however one further point. As the State accepts, the Judge had no power to backdate the sentence. The appropriate course of action was to take time spent in custody into account when fixing the term of imprisonment to be served. For the State, Ms Driu submitted that although the Court should quash the order for backdating, no corresponding adjustment should be made to the term of 9 years.

[10] Although an assessment in excess of 9 years was within the range available to the Judge, the State did not seek leave to appeal. For this Court now to determine the appeal by simply quashing the order for backdating is in reality increasing the term imposed by the Judge by one year. We do not think that is appropriate, given the State has not seen fit to challenge the appropriateness of the 9 year term.

[11] Accordingly the appeal against sentence is allowed. The sentence of 9 years imprisonment is quashed and a sentence of 8 years imprisonment substituted. The order backdating the commencement of the sentence is quashed as being without jurisdiction.

Barker, JA

Henry, JA

Scott, JA

Solicitors:

Messrs Tevita Fa and Associates, Suva for the Appellant

Office of the Director of Public Prosecutions, Suva for the Respondent

AAU0002U.05S