Navugona v State [2021] FJCA 260; AAU134.2017 (29 December 2021)

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

CRIMINAL APPEAL NO.AAU 134 of 2017

[In the Magistrates’ Court at Lautoka Case No. 829 of 2016]

BETWEEN:

MALAKAI ROKORAYAU NAVUGONA

TANIELA MATAI

Appellants

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Ms. S. Nasedra for the Appellants

: Mr. M. Vosawale for the Respondent

Date of Hearing: 29 December 2021

Date of Ruling: 29 December 2021

RULING

[1] The appellants had been charged in the Magistrate’s court at Lautoka exercising extended jurisdiction on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed on 18 September 2016 at Municipal Market, Lautoka.

[2] The appellants had pleaded guilty voluntarily and admitted the summary of facts which the learned Magistrate had considered sufficient to prove the elements of the offence. The learned Magistrate had convicted and sentenced the appellants on 28 July 2017 to 07 years and 10 months and 22 days of imprisonment (after the remand period was deducted) with a non-parole term of 04 years.

[3] The appellants being dissatisfied with the conviction and sentence had tendered a timely notice of leave to appeal. The Legal Aid Commission had subsequently submitted an amended notice of appeal only against the sentence. The appellants had tendered a Form 3 under Rule 39 of the Court of Appeal Rules to abandon their conviction appeal.

[4] The sole ground of appeal urged by the appellants was as follows:

‘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.’

[5] The summary of facts as stated in the sentencing order is as follows:

‘According to summary of facts on 18^th September 2016 at about 4.45 pm at Municipal Market, Lautoka, complainant was selling jewelries where you approached and stated you need to buy some jewelry. Taniel Matai you pointed at the jewelries you wanted to buy and when complainant stood up and went to give them Mamakai; you grabbed her gold chain (Mangala Sutra) causing the complainant to fall down on the ground and ran away while Taniel walked away towards Lautoka city mall. Matter was reported to the Lautoka Police Station and later on information received , both of you were arrested and interviewed under caution where you admitted the allegation.’

[6] The court delivered the Ruling on 20 October 2020 allowing leave to appeal against the sentence primarily on the basis that the Magistrate had erred in applying the sentencing tariff set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) i.e. 08 to 16 years of imprisonment and picked the starting point at 13 years resulting in the ultimate sentence of 08 years.

[7] The Court in its Ruling remarked inter alia:
[11] From the summary of facts, it is difficult to see how the factual background of this case fits into a similar scenario the Supreme Court dealt with in Wise. It appears to me that this is a situation between ‘street mugging’ where sentencing tariff had been recognized as 18 months to 05 years and ‘home invasion’ as espoused in Wise (08 to 16 years) going somewhat parallel to ‘attacks against taxi drivers’ where the sentencing tariff is between 04 to 10 years of imprisonment.

[8] The sentencing tariff for aggravated robberies in the form of street mugging has been considered to be between 18 months and 03 years of imprisonment [Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) and Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) and Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020)] while sentencing tariff for such aggravated robberies in the form of attacks against providers of public services has held to be 04 years to 10 years of imprisonment (vide State v Ragici [2012] FJHC 1082; HAC 367 or 368 of 2011, 15 May 2012; State v Bola [2018] FJHC 274; HAC 73 of 2018, 12 April 2018 and Usa v [2020] FJCA 52; AAU81.2016 (15 May 2020)].

[9] The Ruling ling on leave to appeal also went onto state:

‘[18] Therefore, the picking 13 years as the starting point by the Magistrate demonstrates a sentencing error having a reasonable prospect for the appellants to succeed in appeal regarding their sentence.

[19] However, I must hasten to add that this case or cases of similar facts and circumstances cannot and should not be treated only as ‘street mugging’ cases. Neither could they be equated to ‘attacks against taxi drivers’ though they resemble the later in some respects. They are more of unsophisticated robberies within commercial premises or targeting commercial goods or money (‘shop mugging’) committed by a group or a person armed with an offensive weapon with a low level of actual or threat of force, violence, coercion, intimidation, physical or psychological harm to persons. They may objectively and in general be more serious and different in nature to ‘street mugging’ and ‘attacks against taxi drivers’ as the robbery takes place at or within a place occupied by the victim where a business is carried out potentially having a detrimental effect on the business; it interferes with the livelihood of the complainant and others working in the business.

[20] Therefore, in my view, the present case is more a case of an unsophisticated aggravated robbery within commercial premises or targeting commercial goods or money (‘shop mugging’) and appropriate sentence for aggravated robberies with those characteristics at first blush appears to fall possibly between ‘street mugging’ and ‘home invasions’ running somewhat parallel to ‘attacks against taxi drivers’. However, the more sophisticated of such aggravated robberies with high level of actual or threat of force, violence, coercion, intimidation, physical or psychological harm to persons and detrimental impact on the businesses would make them similar to ‘home invasions’ and sentenced accordingly.

[21] Therefore, it would be advisable for the state to seek guidelines as to the sentencing tariff for unsophisticated and sophisticated aggravated robberies within commercial premises or targeting commercial goods or money (‘shop mugging’) from the Court of Appeal in this appeal for future guidance of sentencing judges and Magistrates.

[23] Therefore, the full court may consider what the appropriate rage of sentences for unsophisticated and sophisticated aggravated robberies within commercial premises or targeting commercial goods or money (‘shop mugging’) and what the ultimate sentence should be as far as the appellants are concerned.’

[10] The Legal Aid Commission on behalf of the appellants had in the meantime made an application for bail pending appeal and written submissions (15 November 2021). The State had filed its submissions (30 November 2021) and stated that bail pending appeal could be considered favorably.

Law on bail pending appeal

[11] 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 (3 Decembe2 2012) [2012] FJCA 100, Zhong v The State AAU 44013 (15 July 2014), <4), Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015), Ratu Jope Seniloli & Ors. v The State&#160b> 41 of 2004 (23 August 2004), Ranu>Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019), Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013), Qurai v State [2012] FJCA 61; AAU36.2007 (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 of 223 August 2004)]004)].

[12] Out of the three factors listed under section 17(3)17(3) of the Bail Act ‘likelihood of success’ would be consideirst and if the appeal has a ‘very high likelihood ofod 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.

[13] 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’.

[14] 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 due to the sentencing error of wrong tariff being applied.

[15] 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.

[16] The appellants have already served about 04 years and 05 months in imprisonment. The certified appeal records are yet to be obtained by both parties (though they are almost ready awaiting certification) but 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).

[17] Though, the aggravated robbery committed by the appellants had occurred at the Municipal Market they had stolen only the gold chain worn by the vendor (as opposed to the jewellery displayed for sale at the shop) and used minimal force on her. The appellants had also pleaded guilty in the Magistrates court. 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.

[18] 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 which will help this court to dispose of several appeals pending before the full court of the Court of Appeal involving aggravated robbery.

[19] 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, MALAKAI ROKORAYAU NAVUGONA and TANIELA MATAI subject to the following conditions:
   
   • (i) The 01^st appellant shall reside with his parents at their family residence at Nanuku Settlement at Natabua, Lautoka while the 02^nd appellant shall reside with his parents at their family home at Ramzan Road – Stage1, Natabua, Lautoka.
   • (ii) The appellants shall report to Lautoka 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 Ana Rokosau of Nanuku Settlement at Natabua, Lautoka who is the mother of the 01^st appellant to stand as surety.

(v) The 02^nd appellant shall provide in the person of Ana Ma Roga of Addie Wong Road, Kashmir Lautoka/Ramzan Road – Stage 1 Natabua, Lautoka who is the sister of the 02^nd appellant to stand as surety.

(vi) Both 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