IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No :HAM 012 of 2008

BETWEEN

ELENAVA RAULUKAVU
Applicant

AND

THE STATE
Respondent

Appellant in Person
Ms Nancy Tikoisuva for the Respondent

Date of Hearing and Ruling: 20 March 2008

RULING

1.	ELENAVA RAULUKAVU, you were granted leave to appeal out of time on 6 March 2008. You were asked by the court to file your petition of appeal with your grounds of appeal particularized therein. You filed it on the day of the hearing.

2.	 Your appeal is against sentence only.

Background facts

3.	You and two others were charged as follows:

Count 1

Statement of Offence

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

Particular of Offence
KALOKALO VAKAYARATABUA NAIVALUVOU, SAMUELA LAUVE, ELENAVA RAULUKAVU between the 30th and 31st day of August 2007 at Qila, Taveuni in the Northern Division being armed with cane knives robbed VIJAY KUMAR f/n Ram Chandar of a safe valued at $800.00, cash valued at $26,725.04 and assorted jewelleries valued at $19,830.98 to the total value of $47,356.02 the property of Vijay Kumar f/n Ram Chandar and at the time of such robbery did use personal violence to the said Vijay Kumar f/n Ram Chandar.

Count 2

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code Cap. 17.

Particulars of Offence

KALOKALO VAKAYARATABUA NAIVALUVOU, SAMUELA LAUVE, ELENAVA RAULUKAVU between 30th and 31st day of August, 2007 at Qila, Taveuni in the Northern Division unlawfully and without colour of right but not so as to be guilty of stealing took to their own use a motor vehicle registration number EK 464 the property of VIJAY KUMAR f/n Ram Chandar.

4.	You pleaded guilty to the above charges in the Magistrates Court and you were sentenced to 7 years imprisonment on the 25 September 2007.

5.	 You now appealed against sentence only.

Appeal Grounds

6.	You submit the following grounds in support of your appeal:

i)	That the sentence is harsh and excessive considering the fact the appellant pleaded guilty;

ii)	The learned magistrate failed to place sufficient credit on your guilty plea;

iii)	The learned magistrate failed to carefully consider the mitigating factors of the case: a) that the appellant cooperated with the police in their investigation; b) he pleaded guilty; c) Most of the items were recovered.

7.	During the hearing of your appeal and in support of your claim that the sentence was harsh and excessive, you stressed to the court that your role was a minor one, in that you only tied up the victims. By implication you are suggesting that your sentence should not be as harsh as the other two co-accused.

8.	You also claimed during your appeal hearing that all the items were stolen by you and the co-accused were fully recovered. This is an important issue but should have been submitted before the learned Magistrate so that it could be verified. This court is not in a position to accept matters that are just claimed in a submission without support from the court records or supported by evidence.

Appeal Determination 

9.	The Court of Appeal in three cases have carefully developed the proper approach and principles in sentence determination in cases of robbery with violence in the lower courts. 

The cases are:

i)	Raymond Sikeli Singh & Ors v. The State [2004] FJCA 8; Crim App Case No: AAU 008 of 2000;

ii)	Sakiusa Basa v. The State - Crim App. Case No; AAU 024 of 2005;

iii)	Joji Dresuna v. The State - Crim App. Case No: AAU 053 of 2004

10.	I have carefully reviewed the sentencing approach and principles adopted by the learned Magistrate in your case in the light of the above judgments of the Court of Appeal. I find nothing in it to warrant my interference.

11.	The appellant did not advance any new grounds in his written submission to the court nor in his verbal submission, to warrant the exercise of the powers of this court to interfere with the sentence in the Magistrates Court. All the matters the appellant submitted were considered by the learned magistrate before he sentenced him to the term of imprisonment you are now serving.

12.	The appellant’s guilty plea was considered by the learned Magistrate and a 2 year discount in the sentence was allowed. In Hem Dutt v The State Crim App case No; AAU 0066 of 2005, the Court of appeal recommends that at least a fourth to a third of the residual sentence of imprisonment be discounted if the plea was entered at the first opportunity.

13.	In this case the Court Record at page 29 shows that the learned Magistrate considered the guilty plea separately and agree that it was entered at the first opportunity and granted 2 years discount reducing the sentence from 9 years to 7 years imprisonment.

14.	The court had explained to the appellant that his role may have a minor one, but he was equally guilty as a principal offender under section 21 of the Penal Code Cap 17. His sentence could not be made substantially less that his co-accused on that basis either.

15.	In my view the sentence passed against you in the Magistrates Court is within the tariff for robbery with violence and accords with principle of parity in sentences passed by courts in similar cases. It must be borne in mind that no two cases are the same. Therefore trying to make a numerical comparison in the length of imprisonment terms passed by one court in one robbery with violence case to the sentence in another is unhelpful and incorrect. A reviewing court is only concern with uniformity in approach and in adhering to the principles of sentencing, not uniformity in sentence.

16.	In this case the learned Magistrate started with the same starting point of 8 years in his sentence determination against the appellant and his two co-accused. His approach was the same as regard the accounting of aggravating and mitigating factors. The final sentence was that the appellant was sentence to 7 years imprisonment and so was another co-accused and the third was sentenced to 6½ years only because he was a first offender. This does not violate the principle of parity in sentencing of co-accused. 

17.	In the light of the above, I find that your appeal has no merit and I dismiss it. The sentence in the Magistrates Court is upheld.

Isikeli Mataitoga
JUDGE

At Suva
20 March 2008.