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Banuve v State [2014] FJCA 19; AAU0095.2012 (5 March 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No. AAU 0095 of 2012
(High Court Criminal Case No. 1233 of 2010)

BETWEEN:

TEVITA BANUVE
Appellant

AND:

THE STATE
Respondent

BEFORE : HON. JUSTICE S. GAMALATH

Counsel : Appellant in person
Mr. M. Delaney for the Respondent

Date of Hearing : 18 February 2014
Date of Judgment : 05 March 2014

JUDGMENT

[1] The applicant, who is out of time and unrepresented, was charged in the Magistrate's Court of Nadi along with another person, for being involved in the commission of three acts of Aggravated Robbery and in the first instance itself on 16th December 2010, he pleaded guilty to all three charges. He was sentenced to four years and ten months with a non parole period of two and a half years.

[2] This is an application to revise the sentence.

[3] The facts relating to the case are straightforward. On the day of the incident, 19th November 2010, around 8 pm, the Applicant and the companion having entered the Ravoravo Pool Centre at Namaka Lane, punched the complainant Mohammed Nafiz, frightened him and robbed him of valuables worth $1748.00. Thereafter, they robbed another, one Rishad Ali of valuables worth $200.

[4] They, in their caution statements admitted the commission of the offences.

[5] On 17th December 2010, they pleaded guilty and the Learned Magistrate handed down the sentence referred to above.

[6] There is no merit to this Application except, as correctly pointed out by the Learned Counsel for the Director of Public Prosecutions, the Learned Magistrate has made an error in computing the sentence and hence the need to rectify it.

[7] The order of the Learned Magistrate is as follows:

"In your case I would take it as my starting point a term of 6 years and add one year for the above aggravating features. I deduct 2years and 4 months to reflect your guilty plea. I have considered the fact that you pleaded guilty to the charge in the first instance though recorded your guilty plea for the second time after vacation of your previous guilty in High Court. You have no previous criminal record for this I deduct further 6 months .I deduct another 4 months for your mitigation. Your final term is four years and ten months of imprisonment."

[8] Clearly, inadvertently, the deduction of the four months referred to at the end of the order had not taken place and hence the need to rectify, so that the total sentence will be read as three years and ten months.

[9] In view of above, the application is allowed for the limited purpose of correcting the error in the computation of the total period of imprisonment and I therefore refer this appeal application to the Full Court.

SUHADA GAMALATH
JUSTICE OF APPEAL