Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Oba v State [2012] FJCA 44; ABUOO6.2009 (24 May 2012)

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

CRIMINAL APPEAL NO. AAU0016 OF 2009
[High Court Criminal Action No. HAC 01/2010]

BETWEEN

DEMESI KOKURABUA OBA
Appellant

AND :

THE STATE
Respondent

BEFORE : Hon. Justice Mr P Kumararatnam
COUNSEL : Appellant in Person
Mr. Pita Koroi Bulamainaivalu for Respondent

Hearing Date : 22/05/2012
Ruling Date : 24/05/2012

RULING

1. The Appellant has filed the application moving for leave of this court to appeal against the sentence imposed on him by Justice Priyantha Fernando, High Court Judge sitting at the Suva High Court. The Appellant was charged for four counts in the information filed against him.i.e. 1) Robbery with Violence contrary to section 293(1)(b) of the Penal Code,2) Unlawful use of Motor Vehicle contrary to section 292 of the Penal Code,3) Driving Motor Vehicle without Driving Licence contrary to section 56(6) & 114 of the Land Transport Act No: 35 of 1998,4) Driving a Motor Vehicle in contravention of the 3rd Party Policy Risk contrary to section 4(1)-(2) of the Motor Vehicle (Third Party Insurance) Act 1977. The appellant pleaded guilty to all four counts in the information and admitted summary of facts. On 19th March, 2010 the appellant was sentenced by the learned judge and given the following concurrent sentences.
   
   • Count 1 - 4 years imprisonment
   • Count 2 - 6 months imprisonment
   • Count 3 - $50 fine in default of payment 1 month imprisonment
   • Count 4 - $25 fine in default of payment one month imprisonment
     

2. At the commencement of the hearing appellant appearing in person informed court that he is relying on the submission filed already. For respondent, State Counsel made his submission.

3. Appellant without being representing, filed his notice of appeal within 30 days of the sentence and advanced 4 grounds in support of his application for leave to appeal against the sentence:

i) The sentence is manifestly harsh and excessive.

ii) The learned judge failed to consider that he was a first offender and supporting his family.

iii) He is looking after his father who is very old and there is no one to look after him now.

iv) The learned judge failed to consider his mitigating factors and imposed a sentence of 4 years.

4. On 19th March 2010 Justice Priyantha Fernando in his sentencing said:

"The maximum sentence for robbery with violence is life imprisonment. This shows how the legislature expects the court to approach the offence.

The tariff for robbery with violence on taxi drivers is a sentence between 4-7 years imprisonment. Aminio Rokotuivuna Mafutuna v State Crim. Appeal No. HAA 153 of 2005S High Court Suva, Simione Raura v State Crim. Appeal No. HAA 068 of 2004. This offence is prevalent offence in Fiji especially where taxi drivers are in a vulnerable position.

Considering the offence I take 5 years as the starting point.

Your mitigating factors are that you are 20 years old, help parents by providing their daily needs, your early plea of guilty; you are the 1st offender and being remorseful. I reduce 3 years for the early plea of guilty and give another 1 year discount for previous good behaviour as you have no previous convictions.

For all other mitigating factors including your age I reduce another 1 year making the total of 4 years imprisonment on count No.1.

Count No: 2 unlawful use of a motor vehicle is a prevalent offence which taxi drivers are vulnerable and this is more serious as the driver was physically removed from the driving seat in order to take control of the vehicle. In State v Fong [2005] FJHC 722; HAC 010.2004S (3rd March 2005) in citing judgement Justice (as he was then) Gates said:

"Much has been said of attack on taxi drivers. The court has concluded that the need for harsh and deterrent sentences to protect taxi drivers and transport facility they provide for the public, far outweighs the personal mitigating circumstances of unthinking or alienated young men"

Considering the facts and the circumstances on count 2 I sentence you to 6 months imprisonment. It is to be served concurrently with the sentence on count 1.

On count No: 3 driving motor vehicle without a driving license I impose a fine of $50 and in default of fine 1 month imprisonment.

On count 4 driving motor vehicle in contravention of the 3rd party policy risk I impose a fine of $25 and in default of payment of fine 1 month imprisonment"

5. The learned judge has very correctly considered all mitigating factors before imposing the sentence against the appellant. The learned judge has picked up the lower end of tariff.

6. The learned Judge is entitled by law to give either a custodial term or fine, or both or even a combination of both where there are number of counts involving distinct offences arising out of the same transaction/s.

7. The sentence is as a matter of law not manifestly harsh and excessive, and not passed in consequence of any error of law. The appellant's grounds in support of his application for leave to appeal the sentence are without any merits.

8. I conclude that this application has no chance of success. If this appeal comes before the full bench it would consider increasing sentence.

ORDERS

8. I order as follows:

a) That the application for leave to appeal against the sentence of Demesi
Kokurabua Oba is dismissed.

b) That the appeal of Demesi Kokurabua Oba be finally dismissed under
section 35(2) of the Court of Appeal Act as it has no chance of success.

Prabaharan Kumararatnam
Justice of Appeal

Dated this
24th day of May, 2012