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Rokobiu v State [2014] FJCA 133; AAU0053.2013 (1 August 2014)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL NO. AAU0053 OF 2013
(High Court Criminal Action No. HAC 12 of 2012)

BETWEEN:

MELI SESARA ROKOBIU
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA

Counsel : Mr. S. Sharma for the Appellant
Ms. M. D. Korovou for the Respondent

Date of Hearing: 3 June 2014
Date of Ruling: 1 August 2014

RULING

1. This is an application for leave to appeal against sentence where the Appellant was charged with another on one count of Aggravated Robbery contrary to section 311(1)(a) of the Crimes Decree No.44 of 2009.
   
2. The Appellant pleaded guilty and was convicted and sentenced to a term of 7 years imprisonment.
   
3. The Appellant in his amended grounds of appeal set out the following grounds:
   

"The learned trial Judge erred in principle and also failed to take into account the following relevant considerations:

1. The aggravating features were already subsumed in the 10 years starting point yet 3 years of imprisonment were added as part of aggravating features;
   
2. Appropriate discount was not given for the following mitigating factors which were available to the Learned Judge to exercise over and above what had been taken into consideration namely:
   
   1. No properties of the victim was damaged;
      
   2. Appellant played a minor role in the robbery;
      
   3. First offence of robbery with violence;
      
   4. No evidence of pre-planning or racial motivation;
      
   5. Remand period of 3 months not taken into account as a separate reduction factor;
      
   6. Discount for guilty plea not shown separately and not reduced from the interim total of 13 years imprisonment."
      

4. It was submitted on behalf of the Appellant that the learned trial Judge in fixing the starting point at 10 years subsumed the aggravating features and therefore the addition of three years for aggravating factors was an error. It was also submitted that the tariff for a count under Section 311(1)(a) should be different from the tariff for a count under Section 311(1)(b).
   
5. The tariff for robbery with violence is 10 to 16 years. Nawalu v. State [2013] FJSC 11; CAV0012.12 (28 August 2013).
   
6. Section 311(a) of the Crimes Decree No.44 of 2009 refers to committing robbery with one or more other persons while section 311(b) refers to committing robbery and at the time of the robbery has an offensive weapon with him or her. However the penalty set out thereunder is 20 years imprisonment and no distinction is drawn between 311(a) and (b).
   
7. As to whether the tariff should be different for offences in terms of 311(a) and (b) is a matter that could be dealt with by the full court along with the position as to whether the starting point of 10 years was too high on the scale of tariffs in the present case and leave is granted.
   
8. As regards the question of discount to be given to the mitigating factors the learned trial Judge has considered all the mitigating factors together and given a discount of 6 years. It is settled law that discounts regarding the period served in remand (Senivalati Ratubalavu v. The State Criminal Appeal No.HAA 063 of 2008 ) and on guilty plea (Mitieli Naikelikelivesi v The State Criminal Appeal No.AAU 0061 of 2007) should be discounted separately.
   
9. The Respondent also has conceded that the guilty plea should have been dealt with separately.
   
10. Leave to appeal is granted on the second ground of appeal as well.
    

Order of Court

Leave to appeal against sentence is allowed.

Hon. Justice S. Chandra
Resident Justice of Appeal