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Bainivalu v State [2012] FJCA 46; AAU0006.11 (11 September 2012)

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

Criminal Appeal No: AAU0006/11
Criminal Appeal No: AAU0020/11

BEFORE THE JUSTICE OF APPEAL,
HON. JUSTICE PAUL K. MADIGAN

BETWEEN:

1. RATU MELI BAINIVALU
2. WALLACE WISE
Applicants

AND:

THE STATE
Respondent

Counsel : Applicants in person
Ms S. Puamau for State

Date of Hearing : 30 August 2012
Date of Judgment : 11 September 2012

JUDGMENT

1. These two applicants were first charged in the Magistrate's Court at Nasinu for the offence of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree 2009. The case was transferred to the High Court on the 20th September 2010 when the information was put to both accused. The first applicant entered a plea of guilty whereas the second applicant pleaded not guilty. The first applicant was sentenced to a term of 6 years imprisonment with a minimum term of 4 years. The second applicant changed his plea at the time of the pre-trial conference. He was sentenced by a different High Court Judge to a term of 7 years imprisonment with a minimum term of 5 years.

2. It is against these sentences that both applicants seek leave to appeal.

3. The first applicant submits that:-

(i) the sentence is harsh and excessive;

(ii) that the parity principle has been offended.

The second applicant submits that:

(i) the sentence is harsh and ignores some of his mitigating features;

(ii) the judge did not understand his mitigation;

(iii) that the sentence was not "on a par" with his co-accused's sentence;

(iv) that in all the circumstances his sentence was harsh and excessive.

4. It is helpful to rehearse the facts of the case:

"The victim, Shiu Ram, is an elderly man of 62 years, living with his wife, son and 12 year old granddaughter. On 16 April 2010 at about 2.30am he heard the sound of smashing glass. He woke and found three masked intruders in his home. They were armed with a knife and a pinch bar. The first accused, Bainivalu, stood outside as a lookout and threatened the neighbours with stones when they came for the victim's rescue."

5. When sentencing the first applicant, Goundar J, being mindful of the high tariff for aggravating robbery made allowance for the very early guilty plea, his remorse and his disadvantaged background. In arriving at the final sentence of six years, all factors were taken into consideration, including aggravating features of an elderly victim at night and the final sentence of six years was extremely lenient. The four years minimum is an appropriate minimum term.

6. The first applicant's appeal is unarguable. This application for leave to appeal is dismissed.

The Second Applicant
7. In sentencing the second applicant, Thurairaja J took into account the aggravating features which in addition to those pertaining to the first applicant included entering the house and using deadly weapons. His mitigating features of remorse, a later plea of guilty and his period spent in remand were also provided for and the final sentence of seven years was again lenient considering his role in the violent pre-dawn robbery.

8. The difference between the two sentences reflects the different roles that each applicant played. Whereas the first applicant was the "look-out man", the second applicant was one of the persons prising open the door and was part of the group who assaulted the victim.

9. The second applicant's grounds have no merit and his application for leave to appeal is also dismissed.

Paul K. Madigan
JUDGE OF APPEAL

At Suva
11 September 2012