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Maisema v State [2007] FJHC 90; HAA122.07 (28 December 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No : HAA 122 of 2007

Between:

MELI MAISEMA
Appellant

And:

THE STATE
Respondent

Hearing: 21st December 2007
Judgment: 28th December 2007

Counsel: Appellant in Person
Mr. T. Muloilagi for State

JUDGMENT

The Appellant was charged with one count of robbery with violence. It was alleged, that on the 20th of March 2005, he robbed Ravinesh Kumar of a taximeter, mobile phone and cash, worth $900, and immediately before the robbery used personal violence on him.

The charge was laid on the 22nd of March 2005, and he pleaded not guilty. He was granted bail on the 5th of April 2005 but did not always appear in court thereafter. On the first hearing date, he did not appear and a new hearing date was set. A second hearing was adjourned because two prosecution witnesses were not available. Finally, the trial commenced on the 3rd of September 2007.

The complainant, a taxi driver, gave evidence that on the 20th of March 2005, at 8am, he was hired to drive from Bryce Street to Heaven Place by the Appellant and two others. They were accompanied by a small boy. At the roundabout at Heaven Place they told him to stop the taxi. They then took his taximeter, mobile phone and cash. They asked him if he wanted to die. They then ran away. He reported the matter to police, and showed the police the house where the men had come from. The Appellant was inside the house with others and he ran away. He was arrested and taken to the police station. None of the stolen items was recovered.

Corporal Eroni Ratavola tendered the Appellant’s confession to the police. Under cross-examination he denied threatening the Appellant. Sergeant Babu Raj tendered his charge statement in which he also confessed.

The trial was then adjourned to the 4th of September 2007. On that day the Appellant changed his plea and pleaded guilty. The prosecution said that of the stolen goods only $1.65 was recovered. The Appellant had two previous convictions, one for damaging property and one for larceny from person. He had never served a sentence of imprisonment.

In mitigation he said he was 35 years old and earned $200 a week selling lovo. He was also studying mechanical engineering at TPAF and lived with his mother and sister in Raiwaqa.

The learned Magistrate delivered his sentencing remarks on the 7th of September 2007. He set out the tariff and started at 4 years imprisonment. After taking into account the aggravating and mitigating factors, including the two year delay since the offence was committed, the remorse and the guilty plea, he sentenced the Appellant to 3 years imprisonment.

The Appellant appeals against this sentence, saying it is harsh, excessive and wrong in principle. In particular he submits that no violence was inflicted on the complainant and that he was unrepresented by counsel.

This last ground has of course no merit because I see no prejudice to the Appellant in the way the proceedings were conducted. Furthermore, the learned Magistrate was correct in his approach to sentence. The fact that the end sentence was lower than the tariff suggests that he gave considerable weight to the guilty plea and the two year lapse of time from the date of the offence. It is quite correct that the victim received no injury as a result of the incident, but the actions of the group of men (of which the Appellant was a part) reveal threats, forceful removal of property and the forceful holding of his shirt. The victim was in fear. This evidence clearly revealed a robbery with violence and the 3 year sentence in these circumstances for a robbery of a taxi driver was not excessive.

For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
28th December 2007