IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 021 of 2011S

KELEPI ROQICA

vs

THE STATE

Counsels: Appellant in Person
 Mr. L. Sovau for the State
Hearing: 3rd February, 2012
Judgment: 28th February, 2012

JUDGMENT

1.	On 17th September 2009, the appellant appeared in the Suva Magistrate Court, on the following charge:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: contrary to Section 293(b) of the Penal Code Act 17.

Particulars of Offence

KELEPI ROQICA on the 14th day of September, 2009, at Delainavesi in the Central Division, robbed one MOHAMMED RIZWAN s/o MOHAMMED FAROUK of one, Nokia mobile phone valued $70.00, assorted re-charge cards valued $13,709, cash $2,050, all to the total valued of $15,829 and at the same time of such robbery did use personal violence to the said MOHAMMED RIZWAN s/o MOHAMMED FAROUK.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: contrary to Section 292 of Penal Code Act 17.

Particulars of Offence

KELEPI ROQICA on the 14th day of September 2009 at Delainavesi, Lami in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing drove for his own use vehicle registration number CT 245 on Nakauvadra Road, Delainavesi the property of AUTO CARE FIJI LIMITED.

2.	The appellant was remanded in custody until 1st October 2009, when he was granted bail. He was given an opportunity to apply for Legal Aid. On 8th February 2010, the court adjourned the matter to 28th and 29th October 2010 for a hearing. The long adjournment was given to enable the accused to raise funds to pay for a lawyer. On 28th October 2010, the appellant failed to appear, and a bench warrant was issued against him.

3.	On 26th January, 2011, the appellant appeared in court. He indicated he wished to plead guilty. His right to counsel was given to him. He waived the same. The charge was put to him. He said, he understood and pleaded guilty to both counts. The prosecutor read the summary of facts in court.

4.	Briefly, the facts were as follows. The complainant was a 27 year old salesman, employed by Auto Care Fiji Limited. On 14th September 2009, the complainant was selling re-charge cards around Samabula, Walu Bay and Delainavesi. He was travelling in a company car, registration number CT 245. At Kaman Store in Delainavesi, while talking to a customer, the appellant's accomplice, armed with an iron rod, went to the complainant, punched him in the mouth, and demanded money. The complainant surrendered $2,050 cash and his mobile phone to him. The accused was waiting for his friend in a get-away car. He went to the complainant's company car, smashed its front passenger window and stole $13,709 worth of re-charge cards from the vehicle. Later, the accused fled in the get-away vehicle while his friend fled in CT 245. The stolen mobile phone, and $2,623 worth of re-charge cards were later recovered from the accused.

5.	The accused said he understood the facts, and he admitted it. The prosecution tendered 27 previous convictions, 24 of which were committed in the last 10 years. He gave his verbal plea in mitigation. The court adjourned to 8th February 2011 for sentence. On 8th February, 2011, the court sentenced the appellant to 7 years imprisonment on count No. 1, and 12 months imprisonment for count No. 2, both to be concurrent to each other. The appellant was to serve a total of 7 years imprisonment, with a non-parole period of 6 years.

6.	He complained about his sentence, and filed six grounds of appeal on 4th March 2011. He didn't complain about his conviction. Nevertheless, I have examined the record to find out whether or not, the appellant was properly convicted. I could find nothing to fault the Learned Resident Magistrate in convicting the appellant. In my view, the appellant was properly convicted in the Magistrate Court.

7.	On the first three grounds of appeal on sentence, the appellant complained as follows:

1. That the learned Magistrate erred in fact in not taking into account the true facts of my involvement in the matter, and the only role being played by me was a minimum one;

2. That the learned Magistrate erred in fact in deciding to impose a harsh sentence for being armed with an offensive weapon when she herself admitted that I was just sitting in the car outside when the incident took place;

3. That the learned Magistrate erred in fact in not properly directing the level of my involvement as I was not the culprit who inflicted any violence, nor the person who was armed with an offensive weapon, and the learned Magistrate erred to put on me that I was this person, when the facts surrounding my involvement was clear to her.

8.	I will consider the above 3 grounds together, because they are inter-related. The complaint in ground 2 and 3 appear to be true in that, the learned Magistrate confused the facts in paragraph 2, with her comments in paragraph 4, in her written sentence of 8th February 2011. In the summary of facts, it was stated that the appellant's accomplice punched the complainant, and he was the one armed with an iron rod. It was the appellant who was waiting in the getaway car, and it was him who smashed the complainant's front passenger car window. Although the appellant was correct on this matter, it nevertheless does not assist him. This was because, on the principles of "joint enterprise" and "aiding and abetting another" in the commission of an offence, what the appellant and his accomplice did on 14th September 2009, must be viewed together. The appellant by smashing the complainant's front passenger car window, he was in fact also using violence, to intimidate the complainant. This violent robbery was a joint attack by the two. So whatever the two did, they will be jointly liable for it, on the basis of the two principles explained above. The three grounds therefore fail.

9.	Ground 4, 5 and 6 of the sentence appeal can be dealt with together. The complaints are the same, that is, the sentence was harsh and excessive. I have carefully looked at the court record and the learned Magistrate's sentencing remarks, to find out whether or not she imposed a harsh sentence. I can find no fault in her sentencing on the "robbery with violence" charge. In my view, she followed the proper procedure. She referred to the correct authorities, and applied them correctly. On the "unlawful use of a motor vehicle" matter, the maximum sentence is 6 months imprisonment. I quash the 12 months imprisonment, and impose a sentence of 3 months prison, concurrent to the 7 years imprisonment on count No. 1. Total sentence is 7 years imprisonment. I will not interfere with the Magistrate Court's sentence on count No. 1 despite the prosecutor asking for an increase to 8 years imprisonment. In my view, 7 years imprisonment is enough incentive to the appellant to become a law abiding citizen, given his 24 previous convictions in the last 10 years.

10.	In summary, the appeal is dismissed. The total sentence remains at 7 years imprisonment for count No. 1, and 3 months for count No. 2, concurrent to each other. The appellant must serve a non-parole period of 6 years.

Salesi Temo
JUDGE

Solicitor for the Appellant : In Person
Solicitor for the State : Office of Director of Public Prosecution, Suva