IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0091 OF 1997

Between:

USAIA KOROI
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Mr. Clark for Respondent 

Hearing: 9th September 1997

Decision: 9th September 1997

ORAL DECISION OF PAIN J

This is an appeal against conviction and sentence of the Appellant on a charge of robbery with violence.

The Appellant and Taito Rawaqa were jointly charged with this offence in the Magistrates Court. The Appellant pleaded Not Guilty. The co-defendant pleaded Guilty but then disagreed with the summary of facts presented by the prosecution. Accordingly, the learned Magistrate entered a plea of Not Guilty. 

When the case came on for hearing the Appellant maintained his plea of not guilty. The co-defendant pleaded guilty and the facts were accepted by him. After obtaining details of the term of imprisonment then being served by the co-defendant, the learned Magistrate proceeded with the sentencing of the co-defendant. He noted that the co-defendant had 110 previous convictions. He had been in prison since 1991. He had escaped from prison and committed this offence in 1994. The Prison authorities had confirmed to the learned Magistrate that the co-defendant was not due for release until the year 2004. In the circumstances, the learned Magistrate imposed a sentence of four years imprisonment but ordered that it be served concurrently with the co-defendant’s present term.

The hearing then proceeded on the charge against the Appellant. Only four witnesses were called by the prosecution. PW1, a Postmaster, gave evidence that the Appellant was one of two people armed with a cane knife who attacked him and his assistant in the Post Office and stole $6,000. PW2 said the Appellant borrowed a cane knife from him on that particular afternoon. PW3 produced a caution statement made by the Appellant in which he admitted participating in the robbery. PW4 produced a charge statement in which the Appellant admitted the charge. The Appellant elected to make an unsworn statement from the dock. He denied participating in the commission of the offence. He said he was at home on that day. He also said that the police had just arrested him and forced him to sign a statement admitting the offence. 

In his decision the learned Magistrate reviewed the evidence. He accepted the testimony of the prosecution witnesses and rejected the Appellant’s allegation that the police had fabricated evidence. He said that he disbelieved the accused’s explanation and found the charge proved. 

In his appeal against conviction the Appellant particularly addressed the evidence of identification by PW1. He submitted that this was dock identification only. He also says that this witness identified somebody else at an identification parade that had been held. However, on the evidence before the learned Magistrate this was not simply a case of dock identification. PW1 said that the Appellant was a person known to him at the time of the incident. He also said that he had identified PW1 and not anybody else. Moreover, this evidence of identification was not critical to the decision of the learned Magistrate because of the confession by the Appellant, if properly accepted as evidence. 
 
In his submissions the Appellant challenged the admissibility of the confession statement. In effect he said that it was not a voluntary statement. The record shows very little relating to this purported challenge by the Appellant. Certainly he put to the interviewing officer that an earlier statement had been made and the interviewing officer refuted that suggestion. The Appellant also made reference to the matter in his unsworn statement from the dock. This matter was considered and rejected by the learned Magistrate. 

In my view, that was a proper decision for him to come to on the evidence. The statement contains matters that could only have been known to the accused at the time. His suggestion that it was the statements of others that were put to him and he just answered ‘yes’ has no merit whatsoever. By way of example there is the part of the statement in which the Appellant referred to borrowing a cane knife from PW2. That is a significant matter in this case. PW2 said that the accused lived with him and borrowed his cane knife on that day. His evidence was not challenged by cross-examination. In his statement the accused advised the police that he borrowed the knife from PW2 after first saying that he had thrown knife away as he did not wish to involve PW2. Such a matter would not have been known to the police and could not have been concocted by them. That is merely one illustration. I do not propose to go through the statement in any greater length. 

On the evidence the learned Magistrate was fully justified in accepting the statement and acting upon. He was fully justified in accepting the evidence of the prosecution and rejecting the unsworn statement of the Appellant. That evidence proved the charge. The appeal against conviction cannot succeed. 

The Appellant’s appeal against sentence is based on a disparity with the sentence imposed on the co-offender. That person received a four year concurrent prison sentence. The Appellant must serve the three year sentence imposed upon him. The Appellant submits that, in effect, the co-offender has received no penalty for his part in the offence while the Appellant must serve a sentence of three years imprisonment. The Appellant submits that the because of this disparity he should receive a suspended sentence.

It should be noted that the co-offender pleaded guilty. Four years imprisonment was an appropriate sentence for him. All or a lesser term could and perhaps should have been added to his existing term. However, he had been in prison since 1991. He was not due for release until 2004. That is a total period of thirteen years. This Court cannot say that the learned Magistrate was wrong in looking at the total term and deciding that the imprisonment for this offence should be served concurrently.

The Appellant was in a different situation. He was entitled to no discount for a plea of guilty or good character. In fact he had four previous convictions for robbery with violence. He may not have been the instigator of this offence but he fully participated in it. A sentence of three years imprisonment is justified. Viewing the offence and the situation of the Appellant, a suspension of that sentence would be quite wrong. This offence warranted an immediate prison sentence. 

This means that there is some disparity with the co-offender. The Appellant may feel aggrieved. However, his commission of this offence warrants the sentence that has been given to him. It will mean that the co-offender will not serve any additional term but that co-offender is still serving a very long term of imprisonment. 

The sentence of three years imprisonment imposed upon the Appellant is correct in principle. It should not be reduced because the particular circumstances of the co-defendant have meant that the co-defendant appears to have escaped more lightly. The offence committed by the Appellant clearly warrants the sentence that has been imposed. 

Accordingly, the appeals against conviction and sentence are dismissed.

Justice D.B. Pain