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State v Wasa [2000] FJHC 190; Criminal Appeal 33.2000 (8 September 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 33 OF 2000
(Suva Mag. Ct. Crim. Case No. 2610/99)

Between:

STATE
Appellant

And

MARIKA WASA
Respondent

Ms. Asishna Prasad for Appellant
Respondent in Person

JUDGMENT

On 9 February 2000 in the Magistrate’s Court at Suva the respondent was on his own plea convicted and sentenced for the offence of robbery with violence contrary to section 293(1)(b) of the Penal Code Cap.17 by being bound over in the sum of $100 to keep the peace and be of good behaviour for 12 months.

The particulars of offence are that the respondent and another on 4th November 1999 at Nadawa in the Central Division robbed Yee Young w/o Poon
Kum Chung of cash $200 and immediately before such robbery threatened to use personal violence on the said Yee Young.

The State has appealed against leniency of sentence.

The facts are that the respondent came in the complainant’s shop at Nadawa and got hold of her hair and told her not to shout otherwise he will cut her with a knife which was on the shelf. The respondent then picked three containers which contained money and passed them on to a youth who was standing at the door as a watchman. Both of them then ran away. All the money was later recovered.

In mitigation the respondent said that he is sorry for what he has done and promised not to re-offend. He said that at the time of the offence he was under the influence of alcohol. He has sought forgiveness from the complainant. He is a first offender and is a casual worker at Flour Mills of Fiji earning about $45 per week.

The learned counsel for the State submitted that this is not a reconcilable offence. She said that there are a number of aggravating factors and the law provides severe penalty for this type of offence. The respondent threatened to use knife on the complainant before robbing her. She said that the offence warranted a custodial sentence and that the binding over is not a deterrent sentence at all.

The respondent in his submission repeated what he said in mitigation. He is a 22 year old married man with a three year old child.

The accused has committed a very serious offence which carries with it life imprisonment. A custodial sentence was clearly warranted in this type of case which has become altogether too prevalent. For some reason which is not clear from the Record the Magistrate imposed a very lenient sentence and this is not going to serve as a deterrent to the accused or anyone else minded to commit such an offence.

I was minded to send you to prison but bearing in mind that during the last seven months of being bound over you have kept out of trouble I see that no useful purpose will be served in imposing an immediate custodial sentence. However, I must tell you that as a young man of only 22 years of age you made a slip and you had not cared much about your wife and child when you committed this offence in a state of drunkenness which is not an excuse.

I will give you a chance which you might not get again if you commit another offence. I set aside and quash the order of binding over and substitute it with a sentence of 18 months’ imprisonment suspended for two years. The accused is explained his liability.

D. Pathik
Judge

At Suva
8 September 2000