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Waqanivalu v The State [2005] FJHC 570; HAA0044.2005L (16 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0044 OF 2005L

WAISEA WAQANIVALU

v.

THE STATE

Appellant in Person
Mr. N. Nand for the State

Date of Hearing: 16 August 2005
Date of Judgment: 16 August 2005

JUDGMENT ON APPEAL

This is an appeal against sentence.

The appellant having been convicted and sentenced by the Learned Magistrate at Nadi on the 7^th June 2004 for the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

WAISEA WAQANIVALU with others on the 7^th day of May, 2003 at Nadi in the Western Division, robbed SITARUL NISHA d/o RAHMAT ALI of 3 handbags valued at $75.00, 1 gold chain valued at $300.00 and cash $150.00 to the total value of $525.00 and immediately before such robbery did use personal violence to the said SITARUL NISHA d/o RAHMAT ALI.

SECOND COUNT

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to section 224(a) of the Penal Code, Cap. 17.

Particulars of Offence

WAISEA WAQANIVALU on the 7^th day of May, 2003 at Nadi in the Western Division, with intent to cause grievous harm, unlawfully struck AFZAL KHAN s/o SADDIQ KHAN with a knife.

THIRD COUNT

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: Contrary to section 138 of the Penal Code, Cap. 17.

Particulars of Offence

WAISEA WAQANIVALU on the 22^nd day of May, 2003 at Nadi in the Western Division, escaped from the custody of the Police Constable Number 3019 Opeti Lolo from Nadi Police Station.

Particulars of the offence as found by the Learned Magistrate after trial are that the appellant at about 9.00pm on the 7^th May 2003 entered the home of Sitarul Nisha together with another person and came in, pulled the screen door open, put a knife on her throat and told her not to shout or scream and then asked for money. He punched her seven or eight times. Three purses were taken from her house and further Afzal Khan who was the son of Sitarul Nisha was watching a movie at the time and on seeing a Fijian man taking his mother towards the bedroom asking for money was then struck by the appellant with a knife.

The appellant decanted from the scene and was subsequently arrested and charged with the offences to which he pleaded not guilty.

The Learned Magistrate on entering a conviction then proceeded to sentence the appellant to 7 years imprisonment with respect to the first count, 3 years imprisonment with respect to the second count and then ordered that those 2 sentences be served consecutively and then also imposed a sentence of 6 months imprisonment with respect to the third count to be served concurrently with counts 1 and 2. The Learned Magistrate also ordered strokes of corporal punishment but that is not a matter before this court at this time it having been previously dealt with.

The tariff for robbery with violence, offences of this type has been dealt with by the Court of Appeal in Raymond Sikeli Singh v The State – Cr. App. No. AAU0008 of 2000. The court there held that serious armed robbery of commercial premises start at 6 or more years and that where is a greater risk of harm or actual violence, the starting point was said to be 8 years or more and in various serious cases, the starting point of about 10 years.

The facts as were found by the Learned Magistrate and is detailed above indicated that this offence took place at a private residence at night and the appellant was armed with a knife. Second count of course relates to the use of that knife. The offence on my assessment falls squarely within the range as determine by the Court of Appeal where a starting point of up to 8 years might well be considered appropriate. The term of imprisonment of 3 years imposed with respect to the second count certainly does not appear inappropriate and in the circumstances, I am of the opinion that the sentences imposed by the Learned Magistrate were not wrong in principle nor harsh or excessive and accordingly, I don’t propose to interfere with the sentences per se.

It is however quite inappropriate for sentences with respect to offences that are committed simultaneously to be made consecutive. To do so, goes against all sentencing principles and sentences with respect to the first and second counts should therefore be concurrent.

The appeal therefore is allowed. The conviction is confirmed. The sentences of the Learned Magistrate are confirmed and I order that all sentences with respect to counts 1, 2 and 3 be served concurrently, that is a total of 7 years imprisonment.

JOHN CONNORS
JUDGE

At Lautoka
16 August 2005