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Tavele v State [2001] FJHC 254; Criminal Appeal 24 & 32.2001 (27 November 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 24 and 32 OF 2001
(Savusavu Mag. Ct. Crim. Case No. 158 of 2001)

Between:

DANIELE TAVELE
KULINIO VAKASELESELE
Appellants

And

STATE
Respondent

Mr. H. Robinson for the Appellants
Mr. J. Rabuku for the State

JUDGMENT

On 14 May 2001 the appellants Daniele Tavele and Kulinio Vakaselesele appeared in the Savusavu Magistrate’s Court on four counts, namely: both appellants with Robbery with Violence contrary to section 293(1)(a) of the Penal Code Cap. 17; and unlawful use of motor vehicle contrary to s292 of the Penal Code Cap.17, and first appellant with driving motor vehicle without a valid driving licence contrary to sections 56(6) and 87 of the Land Transport Act 1998 and driving a motor vehicle in contravention of the condition of third party policy contrary to section 4(1)(2) of Motor Vehicle Third Party Insurance Act Cap. 177.

Both were convicted and sentenced as follows on their on plea of guilty:

The first appellant was further disqualified from holding or obtaining a driving licence for 12 months.

The facts of the case as outlined to Court is as follows (as in Record page 15-16):

On 12/05/01 the complainant who is a taxi driver in Savusavu Town parked his taxi in front of ANZ Bank.

2nd accused approached complainant wanting to hire his taxi to go to Savarekareka. Asked for fare and complainant said it will be $3.50. 2nd accused paid $3.50 to complainant and left in taxi.

2nd accused told complainant to stop at Hot Bread Shop where they picked 1st accused. Went to Savarekareka.

At Saint Bedes Secondary School Savarekareka, complainant stopped his taxi.

Both accused got out. 1st accused came out and punched the complainant on his shoulders and chest.

Both accused then forced the complainant out of taxi and threw him on the road side. They also took $72.00 cash from complainant.

1st accused then sat on the driver’s seat and 2nd accused came in. They drove away in the taxi towards Nabalebale Village.

Matter reported to Police. Taxi found abandoned near Nabalebale Village about 5 kilometers away. Taxi No. BQ 495. Complainant was medically examined.

1st accused didn’t have any driving licence neither a third party insurance.

Both the appellants have appealed against severity of sentence. They were represented on appeal by Mr. Robinson.

Submissions on 1st appellant

Mr. Robinson submitted that the sentence on the first count for robbery with violence is harsh and excessive.

He said that although the appellant has four previous convictions for similar offence in the years 1987 (18 months), 1988 (18 months), 1989 (2 years) and 1991 (15 months), they were committed over 10 years ago. He should therefore be treated as a first offender although it is a serious enough offence. A lesser custodial sentence would have been appropriate. At that time he was single but he is now married with a child. Counsel says that the appellant is a 33 year old farmer from Dreketi. At the time of the offence he was under the influence of liquor.

Submissions on 2nd appellant

Mr. Robinson submitted that the sentence of 2 years is harsh and excessive. The appellant has no previous convictions; the learned Magistrate has not taken into account the mitigating factors to suit the offence. Counsel submitted that facts do not reveal that the Appellant took an active part in the commission of the offence.
Some other alternative mode of sentencing like suspended sentence would have been more appropriate.

Respondent’s submission

As for 1st appellant, the learned counsel for the Respondent submitted that the offence in the first count was a serious one. This offence was committed against a taxi driver who is trying to get decent living. He has been to prison several times before and knows what prison life is like. He has not learnt his lesson and as a married man of 33 years of age with a child he should have been more responsible.

Counsel submits that the sentence is neither harsh nor excessive. He referred the Court to the case of Vilikona Bukai and State (Crim. App. No. HBA0076J.99B when on very similar facts the sentence of 3 years was upheld by the learned Chief Justice.

As for 2nd appellant, the learned State Counsel submitted that the first Count of robbery with violence was a serious offence. There was violence used on a taxi driver in Savusavu town. Both took part in the actual robbery although the 1st appellant punched the complainant. He submitted that the learned magistrate took into account the mitigating factors when he passed a lesser sentence on the 2nd appellant.

Consideration of Appeal

Both the appeals are against severity of sentence and are opposed by the learned State Counsel. Mr. Robinson submitted that a lesser sentence in the case of first appellant and an alternative sentence of suspended sentence in the case of the second appellant would have been more appropriate on the facts.

The offence of robbery with violence is a serious offence which carried with it a sentence of life imprisonment. Depending on the facts of each case and the criminal record of an accused, if any, and the prevalence of the offence are matters which are taken into account in sentencing.

This offence has become prevalent, particularly robbery of taxi drivers. Sentences of upto 3 years or more have been given depending on the facts of each case. In some cases knives or sharp instruments are used to rob. The Courts have to bear in mind the importance of deterrent sentences and public perception of how Courts dealt with robbers.

In this case, although the actions of the appellants constituted the offence, it was not a serious ‘type’ of robbery with violence. The injury was very minor, namely, ‘bruises in right arm area and right chest area’. The first appellant has four previous convictions for similar offence from 1987 to 1991. He evidently has not learned his lesson despite having been sent to prison for as long as 2 years. The second appellant has no previous convictions. His part in the offence was of a minimal nature although he is no less to be blamed.

In all the circumstances of this case I consider that the sentences are on the high side. Taking into account the mitigating factors I will set aside the sentences and substitute them with a sentence of 2 years’ imprisonment on the first appellant and on the second appellant with one of 15 months’ imprisonment.

To that extent the appeals are allowed.

D. Pathik
Judge

At Labasa
27 November 2001