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Court of Appeal of Fiji |
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: Gamalath, JA
: Prematilaka, JA
: Bandara, JA
Counsel: Mr. Waqainabete and Ms. L. Ratidara for the Appellants
: Mr. M. Vosawale for the Respondent
Date of Hearing: 24 February 2022
Date of Judgment: 03 March 2022
JUDGMENT
Gamalath, JA
[1] I agree with the conclusion arrived at by Prematilaka, JA.
Prematilaka, JA
[2] The appellants had been charged in the Magistrate’s court of 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.
[3] 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 the appellants and sentenced them on 28 July 2017 to 08 years of imprisonment which was reduced to 07 years and 10 months and 22 days with a non-parole term of 04 years considering the period of remand.
[4] Though the appellants had initially appealed against conviction and sentence, several grounds of appeal filed in person and single amended ground of appeal subsequently tendered by the Legal Aid Commission only addressed the sentence and therefore, at the leave stage only the sentence appeal was considered by the single judge who allowed leave to appeal against sentence on the sole ground of appeal which reads as follows:
‘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:
‘On the 18th day of September, 2016 at about 4.45pm at Municipal Market, Lautoka one Malakai Rokorayau Navugona (B-1) 22 years, farmer of Nanuku Settlement, Natabua and Taniela Matai (B-2) 20 years, farmer of Natabua Koro, Natabua robbed one Roshina Devi (A-1), 33 years, business woman of Bible College Road, Lautoka with Gold Chain (Manglsutra) valued $2,500.00 the property of Roshina Devi.
On the above date, time and place (A-1) was selling jewelleries at her jewelleries cart at the passage between the Municipal Market and Lautoka City Mall whilst (B-1) and (B-2) approached (A-1) and stated that they want to buy some jewelleries. (B-2) started pointing at the jewelleries that they wanted to buy. (A-1) stood up and went to give them the jewelleries and (B-1) grabbed (A-1)s gold chain (Mangalsutra) with pendant and (A-1) fell to the ground where she received injuries on both her elbow. Both (B-1) and (B-2) ran away towards the Lautoka City Mall.
The matter was reported to Police by (A-1). Later information received both (B-1) and (B-2) was arrested by Police. Both was interview under caution whereby both admitted the offence. Both charge for the offence of aggravated robbery and warned for prosecution. In custody for court on 01/11/2016.’
Ground of appeal
[6] The Learned Magistrate had applied 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. He had not enhanced the sentence on account of any aggravating features but given discounts of 01 year for mitigating features and another 1/3 of the sentence (04 years) for the early guilty plea ending up with the head sentence of 08 years. After the period of remand was taken into account the ultimate sentence stood as 07 years and 10 months and 22 days.
[7] The appellants’ counsel argued that the learned Magistrate had committed a sentencing error in following the sentencing tariff set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) to their case amounting to ‘street mugging’ and therefore, he had acted on a wrong sentencing principle requiring appellate court’s intervention in the matter of sentence.
[8] The trial judge had applied the sentencing tariff of 08-16 years of imprisonment set in Wise and taken 13 years as the starting point without being mindful that the tariff in Wise was set in a situation where the offenders had been engaged in home invasion in the night with accompanying violence perpetrated on the inmates in committing the robbery. The factual background in Wise was as follows:
‘[5] Mr. Shiu Ram was aged 62. He lived in Nasinu and ran a small retail grocery shop. He closed his shop at 10pm on 16th April 2010. He had a painful ear ache and went to bed. He could not sleep because of the pain. He was in the adjoining living quarters with his wife and a 12 year old granddaughter.
[6] At around 2.30am he heard the sound of smashing windows. He went to investigate and saw the door of his house was open. Three persons had entered. The intruders were masked. Initially Mr. Ram was punched and fell down. One intruder went up to his wife holding a knife, demanding her jewellery. There was a skirmish in which Mr. Ram was injured by the knife. Another of the intruders had an iron bar.
[7] The intruders got away with jewellery worth $550 and $150 cash. Mr. Ram went to hospital for his injuries. He had bruises on his chest and upper back, and a deep ragged laceration on the left eye area around the eyebrow, and another laceration on the right forehead. The left eye area was stitched.’
[9] 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 the appellants’ case can be considered in terms of severity as falling 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). Its features are somewhat similar to ‘attacks against taxi drivers’ where the sentencing
tariff is between 04 to 10 years of imprisonment.
Street mugging
[10] In Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) the complainant, aged 18 years, after finishing off work was walking on a back road, when he was approached
by the two accused. One of them had grabbed the complainant from the back and held his hands, while the other punched him. They stole
$71.00 in cash from the complainant and fled. The Court of Appeal remarked:
‘[11] Robbery with violence is considered a serious offence because the maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in Basa v The State Criminal Appeal No.AAU0024 of 2005 (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should be based on English authorities rather than those of New Zealas had been the previous practice, because the sentence proe provided in Penal Code is simio that in English lesh legislation. In England the sentencing range depends on the forms orgories of robbery.
[12] The leading Engg English authority on the sentencing principles and starting points in cases of street robbery or mugging is the case of Attorney Gene8217;s Refe References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-called obile phoe phones’ judgment). The particular offences dealt in the judgment were charized by serious threats of s of violence and by the use of weapons to intimidate; it was the element of violence in the course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, and further where the maximum penalty was life imprisonment:
[11] The sentencing tariff for street mugging was once again discussed in Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) where the complainant was going home at about 4.30 p.m. when the appellant with another person had called him and asked for money and when told that he had no money, the appellant had hit him with a knife and the other had assaulted him with an iron rod. After assaulting the complainant the appellant had taken $20 from him and run away. The Court of Appeal having discussed Raqauqau and other decisions said as follows:
‘[35] The adoption of the tariff in Wis (Supra) pra) does not seem to be appropriate to the present case as it does not come within the nature of a home invasategory of aggravated robbery and is a situation which would come within the type of streettreet mugging cases. Considering the objective seriousness of the offending and the degree of culpability, the harm and loss caused to the complainant it would be appropriate to follow the sentencing pattern suggested for instances of street mugging.’
[12] Again the Court of Appeal in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) dealt with a case of street mugging in the following terms:
‘[15] The learned single Justice of Appeal, in giving leave to appeal, distinguished facts in Wallace Wise (supra)ch involved a home iome invasion as opposed to the facts in
[16] Low threshold robbery, with or without less physical violence, is sometimes referred to as street-muggingformally illy in common parlance. The range of sentence for that type of offence was set at eighteen months to five years by iji Court of Appeal in Raqauq217;s case (sue (supra).
&#‘[19] Upon a consideration of the matters, as set-out above, I am of the view that the learned Magistrate had acted a upon wrong principle when he applied the tariff set for an entirely different category of cases to the facts of this case, which involved a low-threshold robbery committed on a street with no physical violence or weapons. When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.
(emphasis added)
Attacks against taxi drivers
[13] The decision in State v Ragici [2012] FJHC 1082; HAC 367 or 368 of 2011, 15 May 2012 where the accused pleaded guilty to a charges of aggravated robbery contrary to section 311(1) (a) of the Crimes Decree 2009 and the offence formed part of a joint attack against three taxi drivers in the course of their employment, Gounder J. examined the previous decisions as follows and took a starting point of 06 years of imprisonment:
‘[10] The maximum penalty for aggravated robbery is 20 years imprisonment.
[11] In State v Susu;, a young and a first time offender who pleaded guilty to robo robbing bing a taxi driver was sentenced to 3 years imprisonment.
[12] In State& ma Tamanib> [2011] FJHC 725, thist stahat tntencesences for for robbery of taxi drivers range from 4 om 4 to 10 years imprisonment depending on force used or threatened, after citing Joji Seseu vټStateState [2003] HS/03S and  Peniasi Lee v ;State <] AAU>/92 (apf HAC 16AC 16/91)./91).<
[13] In State&tate #160; v KoavuTagicaki & Another
"Violent robberies of transport providers (be they taxi, bus or vivers not s that should result in non- custodial sentesentences, despite the youth or good prospprospects ects of the perpetrators...."
[14] Similar pronouncement was made in Vilikesa
"violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a chital link in short and medi 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."
[14] State v Bola [2018] FJHC 274; HAC 73 of 2018, 12 April 2018 followed the same line of thinking as in Ragici and Gounder J. stated:
‘[9] The purpose of sentence that applies to you is both special and general deterrence if the taxi drivers are to beected cted against wanton disregard of their safety. I have not lost sight of the fact that you have taken responsibility for yonduct by pleading guilty to the offence. I would have sentenced you to 6 years imprisonmentnment but for your early guilty plea...’
[15] It was held in Usa v State [2020] FJCA 52; AAU81.2016 (15 May 2020):
‘[17] It appears that the settled range of sentencing tariff for offences of 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.’
[16] Therefore, picking 13 years as the starting point by the Magistrate following tariff established in Wise demonstrates a sentencing error. However, I must hasten to add that this case or cases of similar facts and circumstances cannot and should not be treated only as simple ‘street mugging’ cases. Neither could they be exactly equated to ‘attacks against taxi drivers’ though they resemble the later in some respects. Though the complainant was not attacked while performing a vital service for the public as drivers of taxies, buses and vans, she was still engaged in her livelihood of selling jewelry in a cart parked in an open area at a municipal market. At the same time, in the course of her small business, the complainant was also providing a service of some sort to the needy public. The appellants had diverted her attention away by pretending as if they were interested in buying some jewelry before grabbing the chain she was wearing and run away while she fell on the ground.
[17] The appellant’s case appears to be more of an unsophisticated or perhaps even an opportunistic robbery at a public place but it is short of a robbery targeting commercial goods or money committed by a group or a person armed with an offensive weapon with little or low level of actual or threat of force, violence, coercion, intimidation, physical or psychological harm to persons in an enclosed space where a business is carried out (‘shop mugging’). However, the more sophisticated of such aggravated robberies of business premises such as ‘shop mugging’ 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 should be sentenced accordingly.
[18] There does not appear to be an established sentencing tariff for the kind of aggravated robberies the appellants were convicted and sentenced. 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’) with or without accompanying violence from the Court of Appeal or the Supreme Court for future guidance of sentencing judges and Magistrates. Without the full assistance of both the DPP and Legal Aid Commission this court is not in a position to attempt that task in this appeal.
[19] As far as this appeal is concerned, it appears that this incident is objectively more serious in nature than simple ‘street mugging’ and it is on or about the threshold of robberies in the form of ‘attacks against taxi drivers’ as the robbery took place at or within a public place or space with or little violence in its commission, where the complainant was carrying out her legitimate business, potentially having a detrimental effect on her livelihood.
[20] The state informed this court at the hearing of another appeal during this session on sentencing in a ‘street mugging’ case that the Supreme Court is scheduled to hear an appeal in the coming full court session where the DPP has sought a guideline judgment on aggravated robbery cases. Therefore, until the Supreme Court sets down new sentencing guidelines, if any, on street mugging cases and any other forms of aggravated robbery cases, I am inclined to adopt the approach suggested by the Supreme Court in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and in [Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)] in dealing with this appeal.
[21] It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered. In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range
[22] When a sentence is challenged in appeal the guidelines are whether the trial judge (i) acted upon a wrong principle (ii) allowed
extraneous or irrelevant matters to guide or affect him (iii) mistook the facts (iv) failed to take into account some relevant consideration
[vide Naisua v State#16> CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The a hretp://www.p.olii.org/cgrg/cgi-bin/LawCite?cit=%5b1936%5d%20Hd%20HCA%2040?stem=&synonyms=&query=street%20mugging" title="View
LawCite R">[19CA 40;
[23] As I alreald, the learned Magistrate had erred in applying ying the sentencing tariff in Wise
[24] Before parting with this appeal, I wish to point out one inaccurate view that had crept into the sentencing process. The learned Magistrate had given the appellant an automatic 1/3 discount simply because the appellants had pleaded guilty at the earliest opportunity. I think this was the result of following the sentencing tariff in Wise and taking the starting point at 13 years because to keep the ultimate sentence down the Magistrate was compelled to give 1/3 discount. I shall not go into the propriety of taking the starting point at 13 years as similar issues have been dealt with in detail in other decisions of this court.
[25] It should be kept in mind that in Fiji the decision as to what discount should be given to the guilty plea is governed by the decisions in Mataunitoga v State [2015] FJCA 70; AAU125 of 2013 (28 May 2015) and Aitcheson v State [2018] FJCA 29; CAV0012 of 2018 (02 November 2018) and there is no entitlement for an automatic 1/3 discount for early guilty pleas.
[26] A discount of 1/3 for a plea of guilty willingly made at the earliest opportunity was once considered as the ‘high water mark’ in Ranima v State [2015] FJCA17: AAU0022 of 2012 (27 February 2015) but it had not been regarded as an absolute benchmark in subsequent decisions such as Mataunitoga. The Supreme Court dealing with Ranima said in Aitcheson:
‘[15] The principle in Rainima<160;must must be considered with more flexibility as Mataua i160;indicates. The ov grav gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be givenarefuraisal of all factors as Goundar J has cautioned oned is the correct approach. The one thir third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.’
[27] In Mataunitoga Goundar J held:
‘[18] In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and quantification to the guilty plea (as a matter of practice and not principle), and assess the effect of the plea on the sentence by taking in account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.’
[28] Therefore the sentence appeal of both appellants should be allowed and the appellants should be released from imprisonment immediately upon the pronouncement of this judgment.
[29] I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions.
Orders
(1) 01st and 02nd appellants’ appeal against sentence is allowed.
(2) 01st and 02nd appellants should be released from imprisonment forthwith.
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Mr. Justice W. Bandara
JUSTICE OF APPEAL
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