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Manoa v State [2013] FJCA 4; ABU0060.2010 (25 January 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ABU0060 OF 2010
[High Court Criminal Action Nos. HAC 108 of 2009, HAC 61 of 2010]

BETWEEN:

ELIA MANOA
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA
Counsel : Appellant in Person
Mr. M. Korovou for Respondent

Date of Hearing : 12 October 2012
Date of Ruling : 25 January 2013

RULING

1. The Appellant was charged with one count of robbery with violence in HAC 108 of 2009 and one count of unlawful use of motor vehicle. In HAC 061 of 2010 he was charged with two counts of Aggravated Robbery contrary to section 311(1)(b) of the Crimes Decree No.44 of 2009.
   
2. The Appellant pleaded guilty on 27th July 2010 to both files and was convicted. He was sentenced on 6th August 2010 to 10 years for the robbery with violence count and 4 months imprisonment for unlawful use of motor vehicle count in HAC 108 of 2009. For each count of aggravated robbery in HAC 061 of 2010 he was sentenced to 10 years with non parole period of 7 years for each count of robbery. The sentences for the offences in both files were to run concurrently.
   
3. The Appellant appealed against his sentence on 23rd August 2010 and the application for leave to appeal had been taken up for hearing on 29th March 2011.
   
4. The application for leave to appeal was taken up for re-hearing on 12th October 2012 before which the Appellant had filed an application on 21st July 2011 seeking to amend his grounds of appeal and include grounds against his conviction as well as his sentence.
   
5. The grounds adduced by the Appellant in his original notice of appeal against his sentence were on the basis that the sentence was erroneous as it was based on a higher tariff.
   
6. In the amended notice of appeal filed on 21st July 2011, the grounds adduced against his convictions as that his plea of guilty was not unequivocal as he had been induced by his lawyer to plead guilty.
   
7. Although the grounds alleged against his conviction have been filed out of time, I would consider granting him permission to adduce such grounds. However, on a consideration of the proceedings before the learned trial Judge, it is seen that the learned trial Judge had questioned the Appellant even when represented by his Lawyer as to whether he was pleading guilty truly and voluntarily, and the Appellant had answered in the affirmative and that he was waiving his trial rights. In such circumstances I am not inclined to grant leave against his conviction.
   
8. As regards the application for leave to appeal against his sentence, the main contention is that a higher tariff had been applied in his case.
   
9. In Case No. HAC 109/09 the Appellant had forcefully entered the house of the complainant with a group of men whilst the occupants were asleep. The entry to the house had been gained by breaking the front sliding glass door. The intruders had been armed with pinch bar and knife. The complainant and his family members had been threatened not to resist. The intruders had ransacked the house and stolen items valued at $1700 before fleeing in the complainant's vehicle.
   
10. In Case No. HAC 61/10, the Appellant in the company of two others had robbed a couple in their home which they had gained entry by cutting the backyard fence. The watchman had been gagged after they had entered the compound. The victims who were asleep had been threatened with cane knife, screw driver and pinch bar. They had ransacked the house and fled the scene after stealing properties and cash to the value of $55,695.
    
11. The learned trial Judge in sentencing the Appellant applied the principles outlined in State v. Basa Criminal Appeal No. AAU0024 of 2005, Wainiqolo v. The State AAU 0027 of 2006 and State v. Rokonabete and Others HAC 1128 of 2007. Accordingly the learned Judge had adopted the tariff range from 8 to 14 years imprisonment and picked 10 years as the starting point and having considered the aggravating and mitigating circumstances arrived at the sentence imposed on the Appellant.
    
12. In Wainiqolo v. The State (Supra) the starting point used by the learned Judge was 12 years and the offender was sentenced to 10 years imprisonment.
    
13. It was observed in State v. Rokonabete (Supra) that "the dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use of threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because of the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating facts may include the value of items taken and the fact that an offence as committed whilst the offender was on bail."
    
14. In the present case, the circumstances in which the offences were committed come well within the above observations and furthermore the Appellant had committed the robbery in HAC 61/09 whilst he was on bail in HAC 108/09 the trial of which was about to commence when he pleaded guilty in the present cases.
    
15. The Appellant has in his submissions adverted to the fact that since the offences were committed prior to the passing of the Sentencing and Penalties Decree of 2009 that the provisions therein could not be applied regarding the setting of parole in respect of the sentences imposed on him. The Sentencing and Penalties Decree has laid down matters relating to procedural law and not substantive law and therefore this submission of the Appellant is of no force and the discretion exercised by the learned trial Judge in setting the parole at 7 years cannot be faulted in the circumstances of the cases.
    
16. In the above circumstances the application of the Appellant for leave to appeal against his conviction and sentences are refused in terms of Section 35(3) of the Court of Appeal Act and Rules (Cap.12).
    

Orders of the Court

17. Application for leave to appeal against conviction and sentence is refused.
    

Suresh Chandra
Resident Justice of Appeal