Kotobalavu v State [2014] FJCA 224; AAU0007.2012 (7 April 2014)

IN THE COURT OF APPEAL
[On appeal from the High Court]

CRIMINAL APPEAL NO: AAU0007 OF 2012
(High Court Case No. HAC043 of 2010)

BETWEEN:

1. LASARUSA KOTOBALAVU
2. PENI BOLA
3. SAMUELA RABEDIO
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Mr. S. Sharma for the Appellants
Mr. Y. Prasad for the Respondent

Date of Hearing : 21 March 2014
Date of Ruling : 7 April 2014

RULING

[1] The appellants were sentenced to 6 years' imprisonment each after they pleaded guilty to a charge of aggravated robbery in the High Court at Suva. The appellants seek leave to appeal against their sentences pursuant to section 21(1)(c) of the Court of Appeal Act. The power to grant leave may be exercised by a single judge under section 35 (1) of the Court of Appeal Act.

[2] For the appellants to succeed with their applications, they must demonstrate that the sentencing judge arguably -

(i) acted upon a wrong principle; or

(ii) took into account irrelevant matters; or

(iii) mistook the facts; or

(iv) failed to take into account some relevant matters (Naisua v State Criminal Appeal No. CAV0010 of 2013).

[3] The appellants advance the following grounds of appeal:

"The Learned Trial Judge erred in principle and also failed to take into account the following relevant considerations:

1. Commenced sentencing at a very high starting point which was not supported by the summary of facts agreed by the Appellants;
   
2. The aggravated features were wrongly subsumed in the high starting point of imprisonment;
   

100. Appropriate discount was not given for the following mitigating factors which were available to the Learned Trial Judge to exercise over and above what had been taken into consideration namely;
     
     1. No weapons were used hence it was not an armed robbery, no property of the victim was damaged including his taxi;
        
     2. Cooperation with Police;
        
     3. Recovery of item worth $400.00, no serious injuries inflicted on the victim;
        
     4. No evidence of any trauma on the victim;
        
     5. Victim not confined or gagged;
        
     6. Reconciliation with the victim by the First Appellant;
        
     7. No evidence of pre planning or racial motivation;
        
     8. Appellants did not flee in the taxi of the victim.
        

4. Remand period of one month for the first and second appellants and two weeks for the third appellant were not taken into account separately in reducing the sentence.
   
5. The Learned Judge mistook the amount of money stolen from the victim as $460.00 which was contrary to the facts of the case."
   

Starting point
[4] The maximum penalty for aggravated robbery is 20 years imprisonment. In the present case, the learned judge used a term of 12 years as his starting point. The learned judge gave the following reasons for selecting this starting point at paragraph 17 of his sentencing remarks:

"For each of these three accused, I take as a starting point of sentence a term of twelve years. Such a high starting point subsumes the aggravation of unbalanced aggression. I accept that the robbery was not pre planned nor was it at night, both of which would have been cause to enhance the starting point by aggravation. There is nothing to add to the twelve years by way of aggravation."

[5] Counsel for the appellants submits that the learned judge was wrong in principle to select a very high starting point by subsuming the aggravating factors.

[6] The starting point for aggravated robbery is not fixed by law. The starting point is selected from the established tariff for the offence. The tariff is established to achieve uniformity in sentencing. Generally, the starting point is picked from the lower or the middle range of the tariff, depending on the objective seriousness of an offence. But there is no hard and fast rule regarding the selection of the starting point. Sentencing requires exercise of judicial discretion to arrive at a punishment that fits the crime. This is called the proportionality principle. When a sentence is challenged on an appeal, the ultimate question for the appellate court is whether the sentence complies with the proportionality principle.

[7] In the present case, the learned judge did select his starting point by subsuming the aggravating factors. But then he did not add anything to that term. From the term of 12 years, he reduced the sentence by 6 years to reflect the mitigating factors.

[8] It is recognized that the tariff for aggravated robbery is now 10 to 16 years imprisonment (Livai Nawalu v State Criminal Appeal No. CAV0012/2012). The starting point of 12 years after subsuming the aggravating factors was within the middle range of the tariff. There is no arguable error of principle by the trial judge in the selection of the starting point.

No weapon used
[9] An armed robbery is an offence contrary to section 311 (1) (b) of the Crimes Decree. The appellants were charged under section 311 (1) (a) of the Crimes Decree. The aggravation under this section is that the robbery is committed by two or more people. Tin the present case, the aggravation was that a taxi driver was attacked by a group of three men in the course of providing public transport to them. The lack of use of a weapon was not a relevant consideration.

Cooperation with police
[10] Apart from confessing to the offence under caution, no evidence of the cooperation with the police was led by the appellants.

Recovery of properties
[11] The victim alleged that the appellants stole his car stereo face (valued at $400.00), cash ($60.00), watch and mobile phone. When the appellants pleaded guilty, they admitted stealing the stereo face and money ($40.00), but not the watch and mobile phone. The learned judge did not find the dispute significant and sentenced the appellants on the basis that they did steal some properties that belonged to the victim. No evidence of recovery was led when the appellants were sentenced in the High Court.

Lack of serious injuries and trauma
[12] The appellants punched the victim in the face, head and neck. They only stopped when the victim begged with his attackers not to harm him. The medical report of the victim noted the following injuries:

"Cut on the right upper lip – not bleeding

Severe headache and dizziness,

Unable to open jaw properly – limited range of motion,

Difficult in swallowing because was strangulated with the hands several times."

[13] The fact that the victim sustained physical injuries was an aggravating factor. There was evidence of trauma (severe headache, dizziness and difficulty in swallowing). Lack of serious physical injuries is not a mitigating factor.

Victim not gagged and confined
[14] Fortunately, the appellants did not confine or gag the victim. The gagging or confinement would have aggravated the offence.

Reconciliation
[15] At paragraph 6 of the sentencing remarks, the learned judge stated that the first appellant told him that he had reconciled with the victim. But the reconciliation was not confirmed by the victim.

Lack of planning
[16] At paragraph 17 of the sentencing remarks, the learned judge did take into account that the robbery was not pre-planned.

Victim's taxi not used as getaway vehicle
[17] This fact was irrelevant because the prosecution did not allege that the appellants stole the taxi.

Remand
[18] The length of remand period was insignificant to give separate consideration. The learned judge gave same weight to all the remand periods when considering the mitigating factors.

Mistook fact
[19] I accept the learned judge mistook the facts by stating $460.00 cash was stolen. But I find the error to be insignificant and not prejudicial. $460.00 was the total value of the stolen items ($400.00 for stereo face and $60.00 cash). The value of the stolen items did not affect the final sentence.

[20] Using the 12 years term as his starting point the learned judge reduced the sentence to 6 years for the following reasons:

"From the twelve year starting point I deduct three years to reflect each accused's forceful mitigation. This deduction includes remorse, their comparative youth, the good references they have provided and time spent in remand. This brings each accused's sentence down to an interim total of nine years.

From this nine years interim I deduct a further term of three years in recognition of their guilty pleas; although these were not at the earliest opportunity, they were pleas which were tendered well before trial.

The resultant sentence of six years imprisonment is the term that I now sentence each of these accused to serve.

Violent robberies of transport providers (be they taxi, bus or van drivers) are not crimes that should result in non custodial sentences, despite the youth or good prospects of the perpetrators. I therefore decline to suspend the sentence."

[21] The weight to be attached to the mitigating factors was a matter for the trial judge. Six years reduction in sentence to reflect the mitigating factors is a generous reduction. It is clear that the trial judge gave considerable weight to all the mitigating factors. I find the grounds are not arguable and the appeal cannot possibly succeed.

Result

[22] Leave to appeal against sentence is refused.

[23] The appeal is dismissed under section 35 (2) of the Court of Appeal Act.

Hon. Justice D. Goundar
Justice of Appeal