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Nacagailevu v State [2007] FJHC 47; HAA070.2007 (3 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 070 of 2007

Between:

JOSATEKI NACAGAILEVU
Appellant

And:

THE STATE
Respondent

Hearing: 27th July 2007
Judgment: 3rd August 2007

Counsel: Appellant in person
Ms S. Hamza for State

JUDGMENT

The Appellant appeals against a sentence of 4 years imposed by the Valelevu Magistrates’ Court on the 3rd of May 2007. He says that the sentence is harsh, excessive and wrong in principle.

The charge, filed on the 19th of April 2007, alleged that the Appellant with another, on the 17th of April 2007 at Nasinu, robbed Rajendra Kumar of $300 and one mobile phone, and at the time of the robbery used personal violence on him.

The Appellant pleaded guilty on the 19th of April after waiving his right to counsel. The facts were that the Appellant and another man hired the complainant’s taxi from Nasinu to Tovata. At Tovata, the two men pressed his mouth and tied a brushcutter cord around his neck. The complainant shouted for help and three farmers at a farm nearby heard him. They came to help and apprehended the Appellant, later handing him over to the police officers of the Tuirara Police Post. The Appellant was interviewed under caution and admitted the offence. He said that his accomplice had taken the cash and the mobile phone from the complainant’s shirt pocket.

These facts were admitted. He was a first offender. In mitigation, he said he was 23 years old, married with a 6 year old child, unemployed, educated to Form 6 level and an occasional fisherman. He said that his accomplice was the principal offender and admitted that he tied the complainant’s neck to enable his accomplice to rob him.

In his sentencing remarks, the learned Magistrate started at 6 years imprisonment and after taking into account the early guilty plea, the Appellant’s youth and good character, the value of the items stolen, the degree of violence and the lack of injuries, sentenced him to 4 years imprisonment.

State counsel submits that this is correct in principle and neither harsh nor excessive. She refers to a number of decisions where there were robberies committed on taxi-drivers, and says that sentences are usually imposed in the range of 4 to 7 years.

This was a robbery on a taxi-driver, who was hired to drive the Appellant and his accomplice to a remote area so that they could rob him. It was a planned robbery and the use of the cord around the victim’s neck must have caused much fear to the driver who was earning an honest living providing an important service to the public. The 4 year term is at the lowest end of the tariff and was imposed because the Appellant is a first offender and because he was not the principal offender.

I am not persuaded to interfere with this sentence, but hope that whilst in custody the Appellant is able to learn vocational skills that he can put to good use when he is released. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
3rd August 2007