Gade v State [2012] FJCA 66; AAU8.2011 (12 October 2012)

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

CRIMINAL APPEAL NO. AAU 8 of 2011
(High Court Criminal Action HAC 203 of 2010)

BETWEEN:

TETILO GADE
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini AP
Counsel : Mr S Waqainabete with Mr T Lee for the Appellant
Mr M Korovou for the Respondent

Date of Hearing : 7 September 2012
Date of Ruling : 12 October 2012

RULING

On 11 November 2010 the Appellant pleaded guilty to one count of aggravated robbery being an indictable offence under section 311 (1) (a) of the Crimes Decree 2009. A conviction for the offence is punishable by a sentence of imprisonment for up to 20 years. The Appellant was sentenced on 22 December 2010 to a term of imprisonment of 33 months with a non-parole term of 2 years.

The conviction was entered and the sentence imposed by the learned Resident Magistrate sitting in the Magistrates Court at Suva. In doing so the learned Magistrate was exercising a jurisdiction vested in him by the High Court (Goundar J) pursuant to section 4 (2) of the Criminal Procedure Decree 2009. As a result, any right of appeal, whether with leave or without leave, is to the Court of Appeal.

On 14 January 2011 the Appellant filed his notice of appeal against sentence. The appeal is within time. Pursuant to section 21 (1) (c) of the Court of Appeal Act Cap 12, the Appellant must first obtain leave of the Court in order to appeal the sentence. Under section 35 (1) of the Act a single judge may hear an application for leave to appeal.

The grounds of appeal relied upon by the Appellant are:

"a. Sentence is harsh and excessive as the Appellant was only a 21 year old first offender;

b. The non-parole period is excessive as the Appellant should have been given a second chance rather than a prison sentence; and

c. The Appellant was drunk at the time and it was not a planned robbery, rather it was a crime of opportunity."

To obtain leave to appeal against sentence the Appellant must identify an arguable ground that the sentence was wrong in principle.

The relevant facts can be taken from the statement made by the complainant, Mr Shavneil Singh at 1.00a.m. on 12 September 2010 at the Totogo Police Station. The offence had taken place earlier in the night.

"I can still recall tonight at about 11.00p.m. I was with my workmate _ _ _ at Liquids Night Club that at the mention time we were walking along Scott Street past Ritz Night Club, at Usher Street we were approached by five unknown Fijian boys.

One of the said Fijian boys who was wearing a white basket ball vest and look fair tall slim got hold of my hand and the other boy who was dark short and broad wearing a red shirt touched me and also putting his hand inside my pocket and picked my purse while the other were blocking my way.

The said Fijian boy deeped his hands inside my back right trousers pocket and stole my purse containing $55.00 cash _ _ _ alcatel mobile valued $30.00, FNPF card, driving licence, Westpac card, health care card. From there we went to Market Police Post to lodge my complaint."

Following the arrest of the Appellant shortly afterwards, the complainant stated:

"At the post I came to know that they were Taito Gade who hold my hand while (the other boy) deeped his hands into my pocket and stole my purse."

In the circumstances of this case the question is whether it can be argued that the sentence was harsh and excessive. The Appellant received an immediate custodial sentence of 33 months and was required to serve 2 years before being eligible for parole.

It cannot be disputed that he was 21 years old at the time and that he was a first offender. There was no injury suffered by the complainant and the amount of physical force used appeared to be minimal. There was no suggestion that the offence involved any weapon. On the other hand the complainant was part of a group. It appears that only two of the group were directly involved in the commission of the offence.

Although the complainant was no doubt fearful for his safety, it would appear that the Appellant was slightly younger than the complainant. It would also appear that the Appellant had been drinking.

Finally it should be noted that there was an early plea of guilty. Although it is not clear from the material, due to the prompt arrest of the Appellant, the stolen items may have been recovered.

I consider that the following observations of Shameem J in Nariva –v- The State (HAA 148 of 2005; 9 February 2006) do suggest that there is an arguable issue on the first two grounds:

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always re-habilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preferences to imprisonment."

I am satisfied that there is an arguable point for further consideration by and full argument before the Court of Appeal on whether an immediate custodial sentence of 33 months with a non-parole term of 2 years was wrong in principle. It is appropriate for the Court of Appeal to consider whether an immediate custodial sentence is an appropriate disposition in cases such as the present.

The third ground is so far as it raises the issue of alcohol and intoxication was not specifically considered by the court below. It is not even clear whether the issue was raised in mitigation. The issue of planning or pre-meditation was discussed by the learned Magistrate. It is an issue that relates to the first two grounds of appeal. It is a matter which relates to sentence and should also be considered by the Court of Appeal.

For all of the above reasons the Appellant is granted leave to appeal sentence.

...........................................................
Hon. Justice W. D. Calanchini
Acting President