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Waqa v The State [2003] FJHC 82; HAA0092J.2002S (31 January 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS: HAA0092 & 0093 OF 2002

Between:

ISOA WAQA
SAUKURU TAUVESI
PITA KULAVATA
Appellants

And:

THE STATE
Respondent

Hearing: 24th January 2003
Judgment: 31st January 2003

Counsel: Appellants in Person
Ms L. Chandra for State

JUDGMENT

The three Appellants have filed two appeals each. The cases in the Magistrates Court were dealt with together, because of the proximity of the time of the offences. I have similarly dealt with both appeals in one judgment.

The charges were as follows:

CASE NO: 1603/02

Statement of Offence

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

Particulars of Offence

ISOA WAQA, SAUKURU TAIVESI and PITA KULAVATA, on the 15th day of July, 2002 at Suva in the Central Division robbed PRADEEP TIWARI s/o Krishan Chand Tiwari of $80.00 cash and wrist watch valued at $100.00 to the total value of $180.00 and immediately before such robbery threatened to use personal violence on the said PRADEEP TIWARI s/o Krishan Chand Tiwari.

CASE NO: 1605/02

Statement of Offence

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

Particulars of Offence

ISOA WAQA, SAUKURU TAIVESI and PITA KULAVATA on the 15th day of July, 2002 at Suva in the Central Division, robbed ILIESA WELEILAKEBA of $14.00 cash and immediately before such robbery threatened to use personal violence on the said ILIESA WELEILAKEBA.

All Appellants pleaded guilty on both counts. The facts were (on 1603/02) that on 15/7/02 the complainant was going home from work when the Appellants approached him and asked for money. When he refused they took his wallet by force and his watch. The wallet had $80.00 in it and the watch was worth $100. The complainant did not receive injuries.

On Case No. 1605/02, the facts were that on the same day the 1st Appellant approached the complainant and asked him for money on Stinson Parade. The 2nd and 3rd Appellants then came up from behind the complainant and punched him. He fell down and they took $14.00 from his pocked and fled. In court the Appellants said the complainant was not punched. The prosecution accepted that.

The 1st Appellant admitted 6 previous convictions. The 2nd Appellant admitted 3 and the 3rd Appellant, 5. All previous convictions were for serious offences including robbery with violence (3rd Appellant), act with intent to cause grievous harm (2nd Appellant) and robbery (1st Appellant).

In mitigation the Appellants said they were drunk when they committed the offences. The 1st Appellant was 20 years old and worked as a casual labourer. The 2nd Appellant (also 20 years old) was a baker and expressed remorse. The 3rd Appellant was employed as a labourer and asked to be sent back to his village in Bua.

The learned Magistrate said that the offence was serious and prevalent and sentenced each Appellant to 18 months on each court file, to be served consecutive to each other.

The Appellants appeal against this sentence. In their written and oral submissions, they expressed remorse, saying that their families were suffering as a result of their incarceration.

State counsel opposed the appeal saying that the total sentences were within the tariff and did not offend the totality principle.

The tariff for robbery with violence cases is four to seven years. In cases where the victim has received no injury, there is no evidence of planning, no weapon was used and the value of the stolen items negligible, the sentencer might be justified in choosing a starting point as low as 3 years. However, it is difficult to envisage a situation where a non-custodial sentence might be considered. Indeed in the case of a street attack, the fact that such a robbery interferes with the freedom of individuals to move around without fear and intimidation, would almost inevitably justify a custodial sentence of around 3 – 4 years imprisonment. The use of a weapon and the infliction of injuries might justify a higher sentence.

In the circumstances an 18 month term is far from excessive. In Isoa Koroivuki Crim. App. No. HAA0078 of 2002S I upheld a 12 month term for an appellant who with five others attacked and robbed a young man of items valued at $230.00. He received lacerated wounds as a result of the attack. In that case I commented that if anything the sentence was lenient.

In this case, similarly I do not consider the 18 month terms to be manifestly excessive on the facts of the case. Further, the two incidents were related only by proximity of time, and the identity of the assailants. They were separate offences and called for consecutive sentences.

Finally the total terms imposed do not offend the totality principle because the total sentence still reflects the tariff for such offences and the seriousness of the offending.

These appeals are unsuccessful and are dismissed.

Nazhat Shameem
JUDGE

At Suva
31st January 2003