Doloura v State [2012] FJCA 47; AAU0081.2010 (11 September 2012)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

Criminal Appeal No: AAU0081 of 2010
(on appeal from HAA24/2010S)

BEFORE THE JUSTICE OF APPEAL,
HON. JUSTICE PAUL K. MADIGAN

BETWEEN:

SERU DOLOURA
Applicant

AND:

THE STATE
Respondent

Counsel : Applicant in person
Mr. L. Fotofili for the State

Date of Hearing : 30 August 2012
Date of Judgment : 11 September 2012

JUDGMENT

1. On the 13th October 2009, in the Magistrates' Court at Nausori, the applicant entered a plea of guilty to one count of robbery with violence and he was sentenced to a term of eight years imprisonment. The applicant appealed that sentence to the High Court and on the 10th September 2010, Temo J dismissed the appeal and in doing so set aside the 8 year term and replaced it with a new sentence of 10 years.

2. It is against this sentence that the applicant seeks leave to appeal.

3. The facts of the case reveal a rather violent robbery. In the morning (9am) of the 8th October 2009 the applicant went to a store to buy cigarettes. There was one 60 year old female serving in the store. The applicant left but then returned and violently attacked her by banging her head three times against the concrete wall. She was seriously injured and had to be hospitalized. She nearly died. The applicant stole $673 worth of cash, recharge cards and cigarettes.

4. The applicant makes submissions by way of a home made letter which he says he did not write, nor does he when questioned, understand what is submitted in the letter. His grounds of appeal if leave is granted appear to be –

1. That he appeals only sentence and the Judge had no right to discuss whether he was properly convicted or not;

2. The Judge was confused by referring to "murder" rather than "robbery with violence";

3. By adding to the sentence the Judge did not allow any discount in that component for his plea of guilty.

4. The Judge erred in applying the High Court tariff for robbery with violence when the tariff in the Magistrate's Court is only 6 to 10 years.

Analysis

5. Although it was only an appeal against sentence, the learned Judge in protecting an unrepresented accused examined the nature of the conviction. In no way was this prejudicial to the appellant, the Judge rather helping the appellant to find grounds to appeal the conviction if such existed. The discussion of the conviction had absolutely no influence on the Judge's judicial examination of the sentence.

6. This ground is unarguable and is bound to fail.

7. In dealing with the facts, the Judge referred to the fact that the victim was so badly injured that she nearly died, and because of that said, quite justifiably, that the appellant was lucky not to be facing a murder charge rather than robbery. There was no confusion on the part of the Judge at all but the allusion did nothing more than to emphasize the seriousness of the case.

8. This ground has no merit and is bound to fail.

9. The learned Judge in the High Court was alive to the mitigating factors favourable to this applicant including the guilty plea, and as a result increased the discount that the Magistrate had given him from 6 months to 18 months, before dealing with the aggravating features. The applicant cannot therefore say that no allowance was made to him by the High Court for his plea of guilty because it was and generously so.

10. This ground must fail.

11. The learned Judge had a wealth of experience in dealing with cases of robbery with violence and was aware that the tariff in both Courts was between six and fourteen years; the Magistrate's Court being restricted of course to a limit of ten years. The Judge being mindful that this particular robbery was "extremely violent" and perpetrated by a 33 year old male on a 60 year old female was of the view that the Magistrate had been far too generous in the time that he added for the aggravating features; and as he had the power to do by S.256(1)(a) of the Criminal Procedure Decree 2009 (which had retrospective effect) he increased that component to bring the total sentence up to one of ten years.

12. This ground is also unarguable and must fail.

13. There is no merit whatsoever in any of the grounds relied on by the applicant and I therefore, pursuant to section 35(2) of the Court of Appeal Act find that the application is frivolous. It is refused and the appeal is dismissed.

Paul K. Madigan
JUDGE OF APPEAL

At Suva
11 September 2012