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Nair v The State [2002] FJHC 121; HAA0036J.2002S (24 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0036 OF 2002
(Suva MC Cr. Case No. 544/2002)

Between:

DEVENDRA NAIR
Appellant

And:

STATE
Respondent

Hearing: 17th May 2002
Judgment: 24th May 2002

Counsel: Appellant in Person
Mr V. Vosarogo for Respondent

JUDGMENT

On 19^th March 2002 the Appellant was sentenced to a total of three years and nine months imprisonment in the Suva Magistrates= Court, for the following offences:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Act. 17.

Particulars of Offence

DEVENDRA NAIR s/o JOSEPH NAIR, on the 23^rd day of February 2002 at Suva in the Central Division, robbed DHIRENDRA PRASAD s/o NARENDRA PRASAD of cash $40.00, one gold chain valued $98.00, one alcatel mobile phone valued $329.00, taxi meter valued $650.00, taxi sign valued $150.00 and one Kenwood car stereo valued $1,200.00 to the total value of $2,467.00, the property of said DHIRENDRA PRASAD s/o NARENDRA PRASAD and immediately before such robbery used personal violence on the said DHIRENDRA PRASAD s/o NARENDRA PRASAD.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Act 17.

Particulars of Offence

DEVENDRA NAIR s/o JOSEPH NAIR, on the 23^rd day of February 2002 at Suva in the Central Division, unlawfully and without colour of right, but not so as to be guilty of stealing, converted to his own use a taxi registration number CC829 the property of DHIRENDRA PRASAD s/o NARENDRA PRASAD.

He was sentenced to three years and four months imprisonment on Count 1, and four months imprisonment on Count 2.

The facts of the case as outlined by the prosecution were that the complainant, a taxi-driver was driving his taxi outside the Village 6 cinema on 23^rd February 2002, when the Appellant hired his taxi. He asked the complainant to stop his taxi at Westpac Bank to pick up two other youths, who sat in the back seat. At Nailuva Road, one of the youths pulled the complainant out of the taxi, punched him and robbed him. The Appellant then drove off with the taxi and the youths. They later abandoned the taxi at Lakeba Street. The registration plates had been changed. The Appellant was later arrested and identified by the complainant in an identification parade.

The Appellant admitted these facts, and one previous conviction in 1995, for indecent assault. In mitigation he said he was 25 years old, single and unemployed.

The learned Magistrate started to sentence at five years imprisonment, but gave him one-third discount for his guilty plea. He then sentenced him to three years and four months on Count 1, and four months on Count 2.

The Appellant now appeals against sentence on the ground that a total term of four years and eight months (including sentence on C.F. 405/02) is harsh and excessive. He further said that his accomplice received only one year's imprisonment.

The tariff for Robbery with Violence cases is four to seven years imprisonment. As State counsel submits, a term of three years and eight months for an offence of Robbery on a taxi-driver, who must, of necessity, trust his passengers, and who provides an important public service at all hours of the day and night, is hardly excessive. If anything, it is lenient because the Appellant enabled the offence to be committed, and the offence was planned and pre-meditated. As to the Appellant=s submission that his accomplices got a shorter term, sentences should reflect the different roles of the offenders. The Appellant was the principal offender, and deserved to get a harsher sentence. His sentence of three years and eight months is neither wrong in principle nor manifestly excessive.

As to his sentence in C/F 405/02, which he referred to in submissions, I called for that file to satisfy myself that the total term the Appellant is serving reflected the offending. In that case he was charged also on one count of Robbery with Violence and one count of Unlawful Use of Motor Vehicle. The offences were committed on 11^th February 2002, and the facts are even more harrowing than the case on appeal. In that case also, the Appellant hired a taxi which was later stopped by three other youths. They then punched the taxi driver, took him out of the taxi and stripped him naked. They tied his wrists and ankles together and left him at the scene before they drove off in the taxi. The driver was robbed of $30.00 cash, and he received a number of injuries. He was sentenced to a term of twelve months imprisonment to be served consecutive to the case on appeal.

Both cases show a pattern of offending which deserved a deterrent sentence. A total term of four years and eight months falls within the tariff and is not manifestly excessive. Nor does it offend the totality principle.

The appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
24^th May 2002