State v Koi [2015] FJCA 175; AAU0079.2014 (23 December 2015)

IN THE COURT OF APPEAL
[On Appeal from the Extended Jurisdiction of the Magistrates' Court]

CRIMINAL APPEAL NO: AAU0079 OF 2014
(Nasinu Cr. Case No: 1116/2013)

BETWEEN:

THE STATE
Appellant

AND:

WILLIE KOI; and SEREMAIA TUWAI
Respondents

Coram : Goundar JA

Counsel : Mr. S. Vodokisolomone for the State
Respondents in person

Date of Hearing : 8 December 2015
Date of Ruling : 23 December 2015

RULING

[1] The respondents were jointly charged with one count of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree 2009. The second respondent faced four additional charges of breach of suspended sentence contrary to section 28(1) of the Sentencing and Penalties Decree 2009. They pleaded guilty to the charges in the Magistrates' Court at Nasinu exercising an extended jurisdiction. On the charge of aggravated robbery, both respondents were bound over for 12 months in the sum of $1,000.00 each. On the charges of breach of suspended sentence, the learned Magistrate activated 12 months out of 16 months imprisonment imposed for four earlier offences.

[2] This is an application by the State for leave to appeal against sentence pursuant to section 21(2)(c) of the Court of Appeal Act, Cap. 12. The grounds of appeal are:

1. The learned Magistrate erred in law and fact when sentencing both respondents to be bound over in the sum of $1000 for aggravated robbery when the circumstances of the case warranted a custodial sentence in light of the tariff being 8 to 14 years.

2. The learned Magistrate erred in law and fact when sentencing the 2nd respondent Seremaia Tuwai for counts 2, 3, 4 and 5 to a concurrent term of 12 months imprisonment when the circumstances of the case called for a consecutive sentence to the aggravated robbery sentence.

[3] The test for leave is whether there is an arguable error in the sentencing discretion. The facts were that on 20 September 2013, the victim (a young female) was returning home from work when the respondents tried to grab her handbag. When the victim resisted, the 1st respondent punched her in the face. She fell down on the ground and the respondents fled the scene with her handbag containing mobile phone, cash and bank cards.

[4] Unfortunately, the sentencing remarks of the learned Magistrate were not made available to me. But the sentences imposed on the respondents are clearly in breach of the established tariff for aggravated robbery. A vulnerable young woman was attacked by two men on a street at night time when she was returning home from work. There has to be very compelling reason not to impose an immediate custodial sentence for street mugging especially when physical violence is used to carry out the robbery. The sentences imposed on the respondents are arguably manifestly lenient.

Result
Leave granted.

Hon. Justice Daniel Goundar
Justice of Appeal

Solicitors:
Office of the Director of Public Prosecutions for the State
Respondents in person