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Irivi v The State [2003] FJHC 74; HAA0007J.2003S (1 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0007 OF 2003S

Between:

BIU IRIVI
Appellant

And:

THE STATE
Respondent

Hearing: 25th April 2003
Judgment: 1st May 2003

Counsel: Appellant in Person
Mr N. Lajendra for State

JUDGMENT

On the 31st of January 2003, the Appellant was charged with the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

BIU IRIVI and another on the 27th day of January, 2003 at Suva in the Central Division, robbed MUKESH LAL s/o Mukut Lal $90.00 cash and immediately before such robbery threatened to use personal violence to the said MUKESH LAL s/o Mukut Lal.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

BIU IRIVI and another on the 27th day of January, 2003 at Suva in the Central Division, unlawfully and without colour of right, but not so as to be guilty of stealing, converted to their own use a taxi registration number CE546 the property of MUKESH LAL s/o Mukut Lal.

On the same day, he pleaded guilty on both counts and was sentenced to 3½ years imprisonment in total. He now appeals against both conviction and sentence.

The facts

The facts outlined by the prosecutor were that on the 27th of January 2003, the complainant was driving his taxi along Victoria Parade when two Fijian men stopped him and hired his taxi to Vuda Street, Flagstaff. They then threatened him, told him to stop his taxi, stole $90.00 in cash, put him out of the taxi and drove the taxi away. The matter was reported to the police, the Appellant was arrested, interviewed and charged. The Appellant admitted these facts, and 10 previous convictions, 5 of which were for robbery with violence. In mitigation the Appellant said he was 39 years old with 3 children. He said he was about to start a handicraft business and was the sole breadwinner.

In sentencing him, the learned Magistrate took into account the guilty pleas, and the other mitigation. He started at 4 years imprisonment and reduced it to 3 years imprisonment to reflect mitigation. On Count 1, he was sentenced to 3 years imprisonment. On Count 2 he was sentenced to a consecutive term of 6 months imprisonment.

The appeal

In his submissions in court and in his petition of appeal, the Appellant purported to appeal against conviction. In his petition of appeal he complained that the complainant had not been cross-examined and that his guilt had not been established beyond reasonable doubt. That complaint was obviously based on a misunderstanding about the effect of a guilty plea. In court he submitted that he had not pleaded guilty on the first count. He said that he had not personally threatened the taxi-driver and had merely accompanied the other offender. He admitted driving the taxi away after the robbery.

As I pointed out to him in court, the Appellant’s culpability did not depend on direct involvement, and under the principle of joint enterprise and responsibility, he is considered culpable if he was part of the joint plan and there was a probable consequence of that plan.

The court record shows that the accused was told of his right to counsel and that he waived that right. The charges were explained to him and he said that he understood them. He pleaded guilty and agreed with the facts which disclosed all the elements of the offence. I cannot accept therefore that the Appellant’s plea were less than unequivocal. The appeal against conviction is dismissed.

As for sentence, the learned Magistrate’s approach was irreproachable. He considered all mitigating factors and started at the lowest end of the tariff. The tariff for robbery with violence in Fiji is 4 to 7 years. There was no weapon used, no actual violence and the value of money stolen was small. The Appellant was not the principal offender. In the circumstances the starting point of 4 years imprisonment was right in principle. All mitigating factors were taken into account, resulting in a reduction of sentence to 3 years imprisonment. With his list of previous convictions for robbery with violence, the Appellant was not entitled to a non-custodial sentence. In all the circumstances I consider the total sentence of 3½ years imprisonment to be right in principle, and to reflect the totality of the offending.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
1st May 2003