Mae v State [2021] FJCA 259; AAU156.2017 (31 December 2021)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates Court]

CRIMINAL APPEAL NO.AAU 156 of 2017

[Magistrates Court of Nasinu Case No. 535 of 2017]

[High Court No. 168 of 2017]

BETWEEN:
TOMASI MAE
JONE LUTUMAILAGI

Appellants

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. M. Fesaitu for the Appellants

: Mr. M. Vosawale for the Respondent

Date of Hearing: 29 December 2021

Date of Ruling: 31 December 2021

RULING

[1] The appellants and another had been tried in the Magistrates’ court at Nasinu under extended jurisdiction on a single count of aggravated robbery contrary to section 311(1) (a) of the Crimes Act, 2009 committed on the 22 May, 2017 at Nasinu in the Central Division. The charge of aggravated robbery against the appellant read as follows:

‘Count

Statement of Offence (a)

AGGRAVATED ROBBERY: Contrary to Section 313 (1) (a) of the Crimes Act 2009.

Particulars of Offence (b)

TOMASI MAE AND JONE LUTUMAILAGI and another on the 22^nd day of May 2017 at Nasinu in the Central Division robbed one ALVIND NAIR and stole $20.00 the property of ALVIND NAIR and before such robbery used force on the said ALVIND NAIR.’

[2] The appellants had pleaded guilty voluntarily to the charge and admitted the summary of facts. The learned Magistrate had convicted them accordingly and sentenced on 16 October 2017 to an imprisonment of 08 years with a non-parole period of 03 years.

[3] The appellants in person had signed a timely notice of appeal/ application for leave to appeal against conviction and sentence. The Legal Aid Commission had subsequently filed amended grounds of appeal and written submissions only against sentence. The State had also tendered its written submissions.

[4] The single Judge of this court delivered the Ruling on 01 October 2020 and granted leave to appeal against sentence on the following grounds of appeal.

‘1. That the learned trial Judge erred in law and in fact when he sentenced the Appellant using the wrong principle resulting in a harsh sentence.

3. The learned Sentencing Magistrate erred in principle in imposing a harsher and excessive sentence in consideration of higher starting point and the nature of the offending.’

[5] The brief summary of evidence as narrated in the sentencing order is as follows:

‘On 23^rd May 2017 at Nasinu in the Central Division, Alvind Nair, a taxi driver by profession was driving vehicle registration number LT5455 at around 2.55am. The complainant picked up three passengers from Rajendra Food Town supermarket at Valelevu. The complainants dropped of the three passengers at Maqbool Road near shortcut to Nadawa.

When the taxi came to a stop the two passengers seated at the back began to punch the complainant’s head while the passenger seated in front started punching the complainants face took the monies from the vehicle. The amount taken was about $20.00.’

Two of the accused were apprehended and produced in Court. The State also tendered in the complainant’s medical report which stated that the complainant suffered injuries such as a laceration on his right lip and a swelling below his left eye.”

[6] The settled range of sentencing tariff for aggravated robbery against providers of services of public nature including taxi, bus and van drivers is 04 years to 10 years of imprisonment subject to aggravating and mitigating circumstances and relevant sentencing laws and practices [vide State v Ragici [2012] FJHC 1082; HAC 367 or 368 of 2011, 15 May 2012, State v Bola [201>[2018] FJHC 274; HAC 73 of 2018, 12 April 2018 and Usa v State [2020] FJCA 52; AAU81.205 May 2020)].

[7] Leave to appeal was granted dted due to the Magistrate having picked 09 years as the starting point when the facts of the case did not warrant picking the starting point towards the higher end the tariff of 4-10 years and the Magistrate seems to have committed double counting by taking aggravating circumstances into consideration twice and also considering the very basis of the tariff of 4-10 years as an aggravating feature again in enhancing the sentence by 02 years.

[8] Consequent to the LA Ruling, the Legal Aid Commission had filed an application for bail pending appeal along with written submissions in November/December 2021. The state had filed written submissions (November/December 2021) and stated that bail pending appeal may be considered.

[9] The courts have not looked at offenders who commit aggravated robberies against providers of services of public nature with any sympathy as seen from the following observations quoted in the Leave to Appeal Ruling.

"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...."

"violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport .... The risk of personal harm they take every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver, they will receive a lengthy term of imprisonment."

‘[9] The purpose of sentence that applies to you is both special and general deterrence if the taxi drivers are to be protected against wanton disregard of their safety. I have not lost sight of the fact that you have taken responsibility for your conduct by pleading guilty to the of. I would have sentenced you to 6 years imprisonment but fout for your early guilty plea...’

‘[11] Much has been said of attacks on taxi drivers. The court has concluded that the need for harsh deterrent sentences to protect taxi drivers, and the transport facility they provide for the public, far outweighs the personal mitigating circumstances of unthinking or alienated young men...’

[10] The appellants had pleaded guilty. The Magistrate had deducted 02 years for mitigating factors including the young age (01^st appellant and 02^nd appellant being of 21 years and 19 years of age respectively) and another year for the early guilty plea arriving at the final sentence of 08 years.

[11] Thus, it appears that had the Magistrate picked the starting point at the lower end of the tariff, after making upward and downward adjustments for aggravating and mitigating factors, the final sentence would not have reached 08 years.

[12] The appellants have already served 04 years and 02 ½ months going beyond the non-parole period of 03 years. The 01^st appellant had been on remand for a month. In my view, the full court is not likely to impose a sentence towards the higher end of the tariff given all the circumstances of the case.

Law on bail pending appeal

[13] The legal position is that the appellants have the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act namely (a) the likelihood of success in the appeal (b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellants when the appeal is heard. However, section 17(3) does not preclude the court from taking into account any other matter which it considers to be relevant to the application. Thereafter and in addition the appellants have to demonstrate the existence of exceptional circumstances which is also relevant when considering each of the matters listed in section 17 (3). Exceptional circumstances may include a very high likelihood of success in appeal. However, appellants can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he fails to satisfy court of the presence of matters under section 17(3) of the Bail Act [vide Balaggan v The State AAU 48 of 2012 (3mber 2012 2012) [2012] FJCA 100, Zhong v The State AAU 44 of 2013 (15 July 2014), Tiritiri v State [2015] FJCA 95; AAU09.2011 uly 2015), Ratu Jope Seniloli & Ors. v The StateState AAU 41 of 2004 (23 August 2004), [20> [2019] FJCA 81; AAU0093.2018 (31 May 2019), Kumar v State [2013] FJCA 59; AAU16.2013 (17 J013), Qurai v State [2012] FJCA 61; AAU36.2006.2007 (1 October 2012), Simon John Macartney v. The State Cr. App. No. AAU0103 of 2008, Talala v State [2017] FJCA 88; ABU155.2016 (4 July 2017), Seniloli and Others v The State AAU 41 o4 (23 August 2004)]004)].

[14] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no direct relevance, practical purpose or result.

[15] If appellants cannot reach the higher standard of ‘very high likelihood of success’ for bail pending appeal, the court need not go onto consider the other two factors under section 17(3). However, the court may still see whether the appellants have shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.

[16] The appellants have already satisfied this court that they deserved to be granted leave to appeal to appeal against sentence and it now appears that they have a very high likelihood of success in their appeal against sentence as discussed above.

[17] I shall now consider the second and third limbs of section 17(3) of the Bail Act namely ‘(b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellants when the appeal is heard’ together.

[18] The appellants have already served about 04 years and 02 ½ months in imprisonment. The certified appeal records have been obtained by both parties in December 2021 and directions for written submissions for the full court hearing were given on 29 December 2021. However, the appeal is not likely to be taken up before the full court in the immediate future (given the number of older appeals already in the state of readiness awaiting full court hearing).

[19] If the appellants are not enlarged on bail pending appeal at this stage, they are likely to serve perhaps more than the whole of the sentence the full court is likely to impose on them after hearing the appeal in the future. Therefore, it appears that section 17(3) (b) and (c) should be considered in favour of the appellants in this case.

[20] In another appeal, the State submitted that there is an appeal bearing No. CAV 025 of 2019 before the Supreme Court scheduled to be heard on 07 April 2022 where the Supreme Court is likely to formulate sentencing guidelines for aggravated robbery.

[21] Therefore, I am inclined to allow the appellants’ application for bail pending appeal and release them on bail on the conditions given in the Order.

Orders

1. Bail pending appeal is granted to the appellants, TOMASI MAE and JONE LUTUMAILAGI subject to the following conditions:
   
   • (i) The 01^st appellant shall reside with his wife at their family residence at Lot 24, Nawame Road – Tacirua East, Suva while the 02^nd appellant shall reside with his parents at their family home at Lot 36 Maqbool Road Nadera.
   • (ii) The appellants shall report to Nasinu Police Station every Saturday between 6.00 a.m. and 6.00 p.m.

(iii) The appellants shall attend the Court of Appeal when noticed on a date and time assigned by the registry of the Court of Appeal.

(iv) The 01^st appellant shall provide in the person of Elenoa Bess – Anne Sorby Mae of Lot 24, Nawame Road – Tacirua East, Suva who is the wife of the 01^st appellant to stand as surety.

(v) The 02^nd appellant shall provide in the person of Daniele Ririnakai Lutumailagi, father and Teresia Muatabu Vueti, mother of the 02^nd appellant respectively, both of Lot 36 Maqbool Road Nadera to stand as sureties.

(vi) All sureties shall provide sufficient and acceptable documentary proof of their identities.

(vii) The appellants shall be released on bail pending appeal upon condition (iv) and (vi) above being fulfilled.

(viii) The appellants shall not re-offend while on bail.

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL