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Vuniwawa v State [2021] FJCA 248; AAU0080.2017 (17 December 2021)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates Court]

CRIMINAL APPEAL NO.AAU 0080 of 2017

[In the Magistrates Court of Suva Case No. 1724 of 2016]

[EJ 123/2016]

BETWEEN:
SAMUELA TUIBEQA VUNIWAWA

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Appellant in person

: Mr. M. Vosawale for the Respondent

Date of Hearing: 16 December 2021

Date of Ruling: 17 December 2021

RULING

[1] The appellant had been arraigned in the Magistrates Court of Suva on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed with two others on 29 October 2016 at Suva regarding property belonging to Anit Ram.

[2] The information read as follows:

‘Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311(1) (a) of the Crimes Act 2009.

Particulars of Offence

SAMUELA TUIBEQA VUNIWAWA with two others on the 29^thh daSeptember 2016 at Samabulmabula, Suva in the Central Division robbed one ANIT RAM and stole 1 Lenovo Mobile Phone valued at $500.00 ,cash $80.00 ,all to the total value of $580.00 , theerty of ANIT RAM and> and before the robbery used force on ANIT RAM.’

[3] After trial, delivering his judgment on 05 May 2017 the learned Magistrate found the appellant guilty of the charge of aggravated robbery. The appellant had been sentenced on the same day to 10 years of imprisonment with a non-parole period of 08 years.

[4] The appellant being dissatisfied with the conviction had in person signed a timely application for leave to appeal against conviction on 15 May 2017.

[5] This Court delivered a ruling into the appellant’s appeal against conviction on 25 June 2020 and refused leave to appeal. However, the court made certain observations on the propriety of the sentence imposed on the appellant.

[6] Thereafter, the appellant has sought an extension of time to appeal against sentence out of time by filing inter alia grounds of appeal against sentence on 05 March 2021.

[7] The appellant inter alia urged the following grounds of appeal against sentence:

Ground 1:

THAT the Learned Magistrate erred in law and in fact in applying the wrong principle of sentencing by taking a starting point of 9 years following sentence tariff guidelines for Aggravated Robberies involving home invasion set out in Wise v State (2015) FJSC 7; CAV 0004.2015 (24 April 2015). Instead the learned trial judge should have followed the sentencing guidelines set for cases involving public service such as taxi, bus, or van drivers.

Ground 2:

THAT the Learned Magistrate erred in law and in fact at paragraph 6 of its sentence judgments date 5^th May 2017 by proceeding to consider the appellants sentence to be consistent with the tariff of Wise v State when the tariff for the type of offending I was convicted of being aggravated robbery against providers of service of public nature including taxi, bus, and van drivers is 4 years and 10 years of imprisonment as was set by full court of appeal in Usa v State (2020) FJCA 52 AAU 81.2016 (15 May 2020).

Ground 3:

THAT in all circumstances of the case the sentence of 10 years with a non-parole period fixed at 8 years is manifestly excessive.

[8] The evidence of the case as summarised by the learned Magistrate is as follows:

‘3. PW1 was Anit Ram a taxi driver by profession and said the accused and 2 others hired his taxi from base at Namadi height and went to Tikaram place. The accused was sitting in the front passenger seat. It was 4.45 pm and in Tikaram place they said they were looking for a home. The accused took a wallet and was trying to pay when the person behind also said he would also pay. Suddenly the witness saw one in front with a knife and he grabbed with him. He said he would kill the driver. One from behind came and pulled him from the taxi and another one tried to drive the car. The witness turned off the car and kicked the car key away. They took the phone (MFI-1) and $80.00 was missing after that. PW1 got injuries and after going to the hospital he came to the police station. The police found the wallet in front passenger seat and later found the mobile. The police showed him the ID of the accused (MFI-3) and his wallet (MFI-4). PW1 also identified the accused in the court.

4. In cross-examination the witness said the accused was sitting next to him and he noticed the face. There was no obstruction. In re-examination PW1 said the police officer gave the ID card and through that he identified the accused and could have identified in an ID parade too if given the opportunity. The wallet found in the car was not his.
   

9. PW6 was Adi Senibiya who was in possession of the phone. After refreshing the memory she first said on 29/09/2016 around 7pm whilst she was preparing the dinner a person gave the phone. After a break she said it was given by Tui ,the accused who was present in the court. In cross-examination by the accused she said she does not know Tui, but when asked by this court she said she knows him previously from the town.

10. PW7 was WDC Lice who was the investigating officer. She complied the docket and marked the phone, wallet and ID and the medical report as PE4, PE5 and PE6 respectively. In cross-examination the witness said she found the wallet and the Id from the car when it was brought to the station on the same date.
    
11. For the defence the accused gave evidence. He said for an earlier case in Nadi the police seized his wallet and Id and the police did not return them. When he was in aunty place the police came and arrested him. They said they found his wallet in the taxi. In cross-examination the accused denied giving the phone to PW6.’
    

[9] Having considered all three grounds of appeal this court delivered its Ruling on 17 September 2021 granting enlargement of time to appeal against sentence on the basis that the sentencing error highlighted in the grounds of appeal offers a real prospect for the appellant to succeed in appeal against sentence and observed as follows:

‘[17] I said in Usa v State [2020] FJCA 52; AAU81.2016 (15 May 2020):

‘Therefore, it appears that the settled range of sentencing tariff for offences of aggravated robbery against providers of services of public nature including taxi, bus and van drivers is 04 years to 10 years of imprisonment subject to aggravating and mitigating circumstances and relevant sentencing laws and practices.’

‘[19] However, by taking a starting point of 09 years following the sentencing tariff guidelines for aggravated robberies involving home invasions set out in Wise, the learned Magistrate has acted upon a wrong principle resulting in the sentence of 10 years of imprisonment imposed on the appellant. Instead the learned trial judge should have followed the sentencing guidelines set for cases involving providers of public transport such as taxi, bus or van drivers.’

[10] At the same time the court approved the learned Magistrate’s remarks on the seriousness of the offence committed by the appellant.

‘[18] The learned trial judge had correctly identified the seriousness of the offence committed by the appellant by quoting from Koroivuata v The State [2004] FJHC 139; HAA0064.2004 (20 August 2004) as follows:

‘Violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. Taxi drivers are particularly exposed to the risk of robbery. They are defenseless victims. The risk of personal harm they take every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver they will receive a lengthy term of imprisonment.’

[11] The Ruling also observed that that the sentence of 10 years of imprisonment is at the very end the tariff for cases involving providers of public transport such as taxi, bus or van drivers though still within the permissible range.

[12] Thereafter, the appellant had filed an application for bail pending appeal following the Ruling on his sentence appeal and the State had tendered written submissions in response and conceded that bail pending appeal may be favourably considered.

Law on bail pending appeal

[13] The legal position is that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act namely (a) the likelihood of success in the appeal (b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard. However, section 17(3) does not preclude the court from taking into account any other matter which it considers to be relevant to the application. Thereafter and in addition the appellant has to demonstrate the existence of exceptional circumstances which is also relevant when considering each of the matters listed in section 17 (3). Exceptional circumstances may include a very high likelihood of success in appeal. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he fails to satisfy court of the presence of matters under section 17(3) of the Bail Act [vide Balaggan v The State AAUf 2012 (3 December 2012 2012) [2012] FJCA 100, Zhong v The State AAU 44 of 2013 (ly 2014), <4), Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015), AAU 1 of 2004 (234 (23 August 2004), Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019), Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013), Qv State [2012] FJCA FJCA 61; AAU36.2007 (1 October 2012), Simon John Macartney v. The State Cr. App. No. A3 of 2008, Talala v State [2017] FJCA 88; ABU155.2016 (4 July 2017), Seniloli and Others v The State

[14] Out of the three factors listed uned under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no direct relevance, practical purpose or result.