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Gudru v State [2007] FJHC 94; HAA097.07 (28 December 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No : HAA 097 of 2007

BETWEEN:

LEDUA TALE GUDRU
Appellant

AND:

THE STATE
Respondent

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

Counsel: Appellant in Person
Ms S. Hamza for State

JUDGMENT

The Appellant appeals against a total of 5 years imprisonment on the ground that the sentencing court failed to take into account this age, history of the case, the effect of the sentence on his family and disparity between the sentences of the co-offenders. In Case Number 1451/07 he was charged on one count of larceny and one count of escaping from lawful custody. The prosecution alleged that on the 15th of July 2007 at Suva, he stole personal items worth $1179 from one Melita Wailisa and on the same day, escaped from the lawful custody of PC 3427 Aminiasi Bola.

The case was first called on the 1st of August 2007, and after waiving his right to counsel, the Appellant pleaded guilty. The facts were that the complainant was a barmaid at the Union Club. At 8.30am on the 15th of July 2007, she went to open the back door of the Club leaving her handbag on top of a freezer at the front door. The Appellant, with another, stole her handbag and ran away. A few minutes later he was seen at Milverton Road acting in a suspicious manner by PC Timoci Lutunauga. He arrested him and his companion, and found the complainant’s leather wallet and digital camera in their possession. They were questioned and later taken to the CWM Hospital in police custody. The Appellant escaped from custody but was later arrested and charged. These facts were admitted. The Appellant had five previous convictions, all for forfeiture of bail or escaping from custody. He had never served a term of imprisonment.

In Case No. 1453/07 he was charged on two counts of robbery with violence. It was alleged that on the 29th of April 2007, he with others were armed with a cane knife, pinch bar and timber and they robbed Michael Brownjohn of personal items to the total value of $3540. On Count 2, he was charged with being armed with cane knife, pinch bar and timber and robbing Emily Francis of personal items worth $1170.

The facts were that on the 24th of April 2007, the complainant on Count 1, and his 14 year old daughter (the complainant on Count 2) were asleep at their home in the Domain when the Appellant with two others removed burglar bars and entered the house with weapons. They tied up the complainants and the complainant on Count 1 was assaulted on his head with a stick causing head injuries. A jacket and flip flops found at the scene were later identified to be the Appellant’s. The Appellant was interviewed under caution and he admitted taking part in the robbery and assaulting the complainant with a stick. He agreed with these facts.

In Criminal Case 1454 of 2007, the Appellant was charged with escaping from lawful custody. He was charged with escaping from the custody of Sergeant Robert Hill on the 8th of April 2007. While being interviewed for the offence of robbery with violence, he escaped from the Charge room of the Central Police Station.

In Criminal Case 1458/07, he was charged with two further offences of robbery with violence. It was alleged that on the 27th of April 2007, he robbed Don Stewart of personal items worth $2150, and Daisy Stewart of items worth $5750 and used personal violence on both before such robbery. The facts were that the Appellant with others, armed with timber entered the house of Don and Daisy Stewart (aged 64 and 65 years), threatened them and hit Daisy Stewart on the head with the timber.

The facts on each case were admitted. In mitigation the Appellant said he was 18 years old and employed as a delivery boy at Coca Cola. He expressed remorse and called a family member, one Amena, to speak on his behalf. He also asked for forgiveness and said he did not know what had gone wrong with the Appellant.

In total the Appellant had pleaded guilty to four counts of robbery with violence, two counts of escaping from lawful custody and one count of larceny. The learned Magistrate considered his guilty plea, his youth and the fact that he had no serious previous convictions. He started at 7 years imprisonment and after adjusting the sentence for aggravating and mitigating factors, sentenced the Appellant to 5 years imprisonment on each count of robbery. On the counts of escaping from lawful custody he sentenced the Appellant to 3 months imprisonment, and on the larceny count to 18 months imprisonment. He ordered that all sentences were to be served concurrently.

The Appellant’s main complaint is that his co-offenders received more lenient sentences. The State submits that the sentences imposed were fair and principled.

The Appellant clearly embarked on an offending spree from April to August 2007. The offences were serious home invasions, resulting in actual injury. Items of considerable value were taken. Although he is only 18 years old, a much heavier penalty might have been passed on him without criticism. Indeed, the learned Magistrate showed him a great deal of compassion when he ordered the sentences to be served concurrently. The Appellant’s co-accused may have been given lighter terms, but that is likely to be a direct result of their lesser culpability. In the worst of these home invasions, the Appellant was the person who actually assaulted the victim and caused his head injuries.

It is unfortunate that the Appellant decided to get involved in a series of violent crimes at the age of only 18. In court, he explained this by saying that he had succumbed to alcohol and peer pressure. In the circumstances of this case, the 5 year terms imposed on him were far from excessive or unprincipled. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
28th December 2007