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Valesasa v State [2008] FJHC 235; HAA033J.2008S (26 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 033 of 2008

Between:

JOSEFATA VALESASA; and
TEVITA CAVU
Appellants

And:

THE STATE
Respondent

Hearing: 19th September 2008
Judgment: 26th September 2008

Counsel: Ms A Lekenaua for Appellants
Mr. P. Bulamainaivalu for State

JUDGMENT

The Appellants were convicted of robbery with violence in the Nasinu Magistrates’ Court. They waived their right to counsel and pleaded guilty on the 9th of August 2007. The facts were that on the 20th of July 2007, a labourer Shailesh Mahenra Prasad, was returning home from work at about 6.30pm at Vula Place, when the Appellants and one other approached him. The 1st Appellant grabbed his hand and the other two began to punch him. When the complainant fell to the ground all three men kicked him. The 1st Appellant with the third man removed two mobile phones from the complainant’s pocket before fleeing the scene. The complainant chased the Appellants and asked them to return the mobile phones in exchange for $26.00 cash he had with him. They grabbed the $26 and took that as well. The complainant received injuries but refused to get a medical examination due to shock. The Appellants and their co-accused were arrested and interviewed under caution. They admitted the offence. The items stolen were not recovered.

These facts were admitted. The 1st Appellant had 6 previous convictions. A copy of the convictions is not included in the court record. The other two offenders were first offenders. In mitigation the 1st Appellant said his girlfriend was pregnant and he was a farmer. He asked for a non-custodial sentence. The 2nd Appellant said he was 21 years old and employed as a nanny on Turtle Island. He expressed remorse and promised not to re-offend. He was 21 years old.

Sentence was imposed on the 28th of August 2007. After reviewing the facts and the aggravating factors. The learned Magistrate summarised the mitigation for each accused. She found the 1st Appellant to be the "ringleader" and said that the public needed to be protected from victimization in robbery cases. She also said that there was a need for deterrent sentences. She sentenced the 1st Appellant to 4 years imprisonment and the 2nd Appellant (and the 3rd accused) to 2 years imprisonment each.

The Appellants have appealed against these sentences saying that they are harsh and excessive. The Director of Public Prosecutions has cross-appealed, asking me to enhance the 2nd Appellant’s sentence. The State concedes that on the basis that there should not be a disparity in the sentences imposed on joint offenders, the 1st Appellant’s sentence should be reduced to 3 years imprisonment.

Counsel for the Appellant submitted that there was inadequate weight put on the guilty pleas and that his sentence should have been backdated so that the 1st Appellant could have served his sentence together with another imposed in criminal case 409/07.

The appeals

The tariff for robbery with violence without weapons was 4 to 7 years but that tariff was held to be too low in a number of cases in the High Court and Court of Appeal. Indeed in State v. Sakiusa Rokonabete & Others HAC 118 of 2007, Goundar J recently comprehensively reviewed sentences for robbery with violence, saying that the tariff in Fiji should be based on English guidelines because the statutory maximum sentence is the same in these two countries.

Robbery with violence is a most serious offence. It invariably involves the infliction of fear and threats of violence. It usually involves the infliction of actual violence and is often committed by the strong on the weak and vulnerable. In this case, three men intimidated, then used gratuitous violence on a man who was walking home after work. After the violence was inflicted on him, he tried to negotiate the return of his mobile phones with cash but with no success. The conduct of the Appellants deserves the severe censure of the courts.

In the circumstances the 4 year sentence imposed on the 1st Appellant was if anything, lenient. However, I can find no evidence on the facts that he was the ringleader. Indeed all three offenders appear to have acted jointly and with equal culpability. For this reason the 2 year disparity between the 1st Appellant’s sentence and that of the 2nd Appellant seems to be difficult to understand. The learned Magistrate appears to have given discount for good character, but even so the disparity is too great. Justifiably, the 1st Appellant considers that he has been unjustly treated.

The State submits that the 2nd Appellant’s sentence is manifestly lenient. Counsel for the 2nd Appellant submits that 2 year terms have been passed in other cases of similar seriousness (Aliki Vilimone v. State [2008] HAA 131-132.2007 per Mataitoga J) and a 12 month sentence passed in the High Court for a first offender in Livai Nawalu v. State Crim. App. HAA 144 of 2007. In both those cases the overriding consideration was to give shorter terms for young offenders.

I accept the principles guiding these cases and accept that good character and youth should lead to lower sentences even in serious cases. I also accept that the learned Magistrate erred in sentencing the 1st Appellant on the basis that he was the mastermind of the robbery. There is no evidence of that.

In the circumstances I consider it just to reduce the 1st Appellant’s sentence to 3 years imprisonment. However I decline to enhance the sentence of the 2nd Appellant, on the basis that because of his previous good character and youth, a lower sentence is justifiable. Nor is the one year disparity between the sentences such that the 1st Appellant will harbor a sense of grievance.

I allow the 1st Appellant’s appeal and reduce his sentence to 3 years imprisonment. I decline to enhance the sentence of the 2nd Appellant who must serve his 2 year term. The DPP’s appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
26th September 2008