Danford v The State [1989] FJHC 12; Haa0063j.1989s (10 November 1989)

IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

CRIMINAL APPEAL NO. 63 OF 1989

Between:

BALE DANFORD
DOUGLAS KNOWLES
Appellant

v.

STATE
Respondent

Appellants in Person
Mr. S. Senaratne for the State

JUDGMENT

The appellants were jointly charged with one other for offences of Robbery with Violence and Unlawful Use of A Motor Vehicle.

They had originally pleaded not guilty to the charges which necessitated the calling of 5 prosecution witnesses including the complainant. Thereafter the court record reveals that the appellant and their co-accused succeeded in frustrating the continuation of the case for a period of 5 months by taking turns at not appearing on each adjournment date.

Then on the 7th of July the appellants changed their pleas to guilty on both counts and were convicted on their guilty pleas.

They were then sentenced to prison terms of 3 years 6 months on the Robbery Count and a concurrent term of 12 months imprisonment on the charge of Unlawful Use of a Motorvehicle.

With respect to the learned magistrate the maximum prison sentence that can be imposed for an offence of Unlawful Use of a Motorvehicle: contrary to Section 292 of the Penal Code is one of 6 months imprisonment.

Therefore in sentencing each appellant to 12 months imprisonment, for such an offence, the magistrate exceeded his jurisdiction and passed an unlawful sentence. It cannot be allowed to remain and is accordingly quashed and in lieu thereof I imposed concurrent sentences of 3 months imprisonment on each appellant in respect of the 2nd count of Unlawful Use of Motorvehicle.

Needless to say, this does not affect the total sentence that each appellant must serve since the sentence was a concurrent one which for all practical purposes is subsumed by the much longer term passed in respect of the Robbery Count.

The facts of this case disclosed the daylight robbery of the occupants of a villa at the Pacific Harbour Complex, at Deuba. The appellants wore masks to conceal their identities and at least 1 of them was armed with a knife which was used during a struggle with the 2 occupants inflicting minor cuts-on them.

A video deck, a bag and some money was stolen and the appellants made their escape in the complainant's vehicle which was parked in the carport at the time. The vehicle was driven through a road block at high speed and was later located some 7 miles away in a damaged state.

The record also reveals that each appellant was also sentenced to a further consecutive term of 12 months imprisonment by way of an activated suspended sentence making a total effective sentence of 4 years 6 months imprisonment in respect of each appellant.

However through a clerical error, the committal warrants in respect of each appellant directed his imprisonment "for the space of 3 years 6 months" only.

The appellants now appeal against the sentences imposed as being harsh and excessive. They urge their relative youth and family hardship in support of their appeals.

The appellants are young men in their mid-twenties. They both have previous convictions for dishonesty in particular, Breaking, Entering and Larceny. The first appellant's previous convictions although not as numerous as the 2nd appellant's nevertheless includes a conviction

for Robbery With Violence for which he was sentenced to a term of 12 months imprisonment on the 25th January, 1988.

The 2nd appellant on the other hand has numerous previous convictions mainly for Larceny and being Drunk and Disorderly spanning a period of some 7 years. It is noteworthy that in most instances the 2nd appellant was fined reflecting perhaps the minor nature of the offences. The 2nd appellant says this is his first time in prison for such an extended length of time and I accept that.

Nevertheless, on his last appearance before the Magistrate Court he was given a suspended prison sentence which should have acted as a final warning and a deterrent against further offending. He did not heed that warning and cannot expect any leniency now.

The circumstances of this offence discloses an element of planning and a dangerous willingness to use violence against innocent persons in their own homes. It occurred in an area which has been the target of a spate of serious robberies in the recent past which cannot be ignored.

By no stretch can a sentence of 3 years 6 months be said to be harsh or excessive for Robbery with Violence.

Finally, I note that the appellants co-accused who incidentally is the 1st appellant's younger brother was subsequently convicted on his guilty plea to both counts and sentenced to a total effective term of 12 months imprisonment suspended for 12 months.

It is unfortunate that he was not dealt with by the same magistrate who had earlier sentenced the appellants and although his sentence might be considered somewhat lenient, I do not propose to alter the sentences of the appellants which are appropriate in the circumstances of this case.

The appeals are accordingly dismissed. I would only add that the appellants should consider their good fortune that I have given them the benefit of the clerical error that has already reduced their sentences by 12 months.

(D.V. Fatiaki)
JUDGE

Suva,
10th November, 1989.

HAA0063J.89S