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Babacala v State [2000] FJHC 168; Criminal Appeal 29 of 2000 (14 July 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 29 OF 2000
(Nausori Mag. Ct. Cr. Case No. 648/99

Between:

MOSESE BABACALA
Appellant

And

STATE
Respondent

Appellant in Person
Ms. Asishna Prasad for the State

JUDGMENT

The appellant Mosese Babacala Waqavuni was on 17 September 1999 on his own plea convicted for the offence of robbery with violence contrary to s.293(1)(b) of the Penal Code Cap.17 by the Magistrate’s Court at Nausori and was sentenced to imprisonment for three years.

The Particulars of Offence is as follows:

MAIKALI QALILAWA TIKINA and MOSESE BABACALA WAQAVUNI, on the 9th day of September, 1999 at sector 5, Lomaivuna, Naitasiri robbed ALITA LAL f/n SHAM SUNDAR SINGH and MAHA DHEI f/n SHUK DEO of cash $112.00 and immediately before such robbery threatened and did use personal violence to the said ALITA LAL f/n SHAM SUNDAR SINGH and MAHA DHEI f/n SHUK DEO.

The appeal is against severity of sentence.

The facts of the case are, inter alia, as hereunder as recorded by the learned Magistrate.

The complainants own a family shop at Lomaivuna, Naitasiri. On 9/9/99, at about 11.40 a.m., Anita Lal the complainant was inside her shop. The main door of the shop was opened for business. Her husband was away at that time. The complainant was alone, when both the accused persons entered the shop from the front door. One of the accused was armed with a cane knife, the other one was armed with a kitchen knife. There was a shutter was placed on top the counter and there was a small opening used for service. Both the accuseds entered the counter through that opening. The 1st accused threatened the complainant with a kitchen knife and demanded the key for the drawer. The 1st accused forcefully took the complainant inside a room adjacent to the shop punched the complainant’s body and face and demanded for money. At the same time, the complainant’s Aunty Mahadei came into the shop. The 2nd Accused held her, pushed her to the floor, warned her not to make any noise. The 1st accused left the 1st complainant on the floor and searched the bedroom. By this time, the 1st complainant stood up and ran outside through the back door. She then raised alarm. The sum of $112.00 cash was taken from the front drawer.

Appellant’s submission

The appellant says that the sentence passed on him is harsh and excessive.

He committed this offence after getting into ‘wrong company’.

He says that he is a 19 year old farmer and is a first offender. He is educated up to form VI.

Respondent’s submission

The learned Counsel for the State submitted that this is a serious offence and a prevalent one. A certain amount of violence was used in the commission of the offence. It involved planning and was not done on the spur of the moment. Counsel referred the Court to a number of cases on the subject of robbery with violence.

She said that the sentence is not manifestly excessive and asks that the appeal be dismissed.

Consideration of the appeal

I have given careful consideration to the submissions made to me in this appeal.

This was a very serious offence indeed, but although some violence was used by the appellant, the Medical Report states that there were "no bruises, no swelling or tenderness on examination". The serious aspect of the case was that the appellant carried a knife in his hands when he entered the shop with another who also had a knife with him and threatened the complainants.

The learned Magistrate regarded the circumstances and the manner in which the offence was committed as very serious when he remarked that "robbery with violence is becoming a joke for criminals. May be cause the Court sometimes
passed liberal sentence and has no impact on offenders". With respect, part of this
comment could create an impression that the Magistrate has departed from the exercise of his sentencing discretion particularly when he talks generally on impact of sentences on offenders in the past for such an offence.

In cases of robbery with violence the Court had to bear in mind the importance of deterrent sentences and public perception of how courts dealt with robberies. (Attorney-General’s Reference Nos. 41 and 42 of 1995 Vincent Edwards and Richard David Horton).

On the facts it is clear that both the accused persons targeted the shop in question; the people in the shop were put in fear and the two female complainants were attacked. However taking into account the mitigating factors and considering the aggravating factors in this case the sentence is on the high side.

It is my conclusion that in all the circumstances of this case it is right that I reduce the appellant’s sentence. He is very young and he pleaded guilty immediately. I feel I am able to make a proper distinction between him and his accomplice for the part he played in this robbery. But having regard to the carrying of knife in this case, coupled with the serious threats that the appellant made to the victim/complainant, the reduction can only be a small one.

After giving the case some serious consideration because of the nature of the offence, I have decided to vary the sentence. Accordingly the sentence is set aside and substituted with one of 2½ years’ imprisonment.

To that extent this appeal is allowed.

D. Pathik
Judge

At Suva
14 July 2000