Navuda v The State [1994] FJHC 100; HAA0015j.1994s (19 August 1994)

IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0015 OF 1994S

BETWEEN:

AKUILA NAVUDA
APPELLANT

-AND-

STATE
RESPONDENT

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT

This appellant was convicted on 19 April, 1993 on a charge of Robbery With Violence contrary to Section 293(1)(a) of the Penal Code, Cap. 17. He was sentenced to imprisonment for 4 years.

He now appeals against both conviction and sentence.

The facts are these:

"On 8 March, 1993 at 8.30 p.m. the complainant John Howard was sitting in the study at his home in Tamavua while his wife was in the kitchen adjacent to the study and his two children already in bed when he heard the rustling of bushes below his study and the dogs barking. He got up and went through the front door carrying a torch. He went around the swimming pool and shone the torch and saw the appellant standing down the ground against the wall about 10 feet away. The area outside was well lighted and as he shone the torch at appellant he screamed to his wife to lock the doors and call the police. He also asked the appellant what he was doing there and asked him to leave. There was another person below the steps who ran up to the top of stairs and grabbed complainant's shirt collar and both men surrounded him. The appellant was carrying a 3 foot stick with sharp point at one end. Appellant took the torch off from complainant and both men dragged him to the house over the pool fence. They told him they wanted liquor. As they entered the house the other person went for complainant's wife who was in the adjacent television room trying to call the police. Complainant was worried about his wife and he followed while the appellant was behind him prodding him with the torch. As they entered the television room the other person grabbed complainant's wife in a headlock and started fondling her breast. The two men then dragged both complainant and his wife into the main living area of the house and appellant and the other person asked complainant where he left his liquor. Complainant told them in the fridge and kitchen pantry. The appellant then took assorted bottles of hard liquor and placed them on a table outside. The other person opened the fridge and a drawer in the kitchen and took out a metal hammer and went straight back to complainant's wife and stood over her who was sitting at the dining table and lifted the hammer and threatened complainant that he would hit his wife. At that time the appellant was still taking bottles outside all the time carrying the stick. Appellant then told complainant he wanted cash. Complainant told him it was in the study. They went inside the study and appellant took complainant's wallet. While they were in the study complainant could hear his wife screaming and praying. At that time the other person was standing over complainant's wife and threatening her with the hammer and fondling her breasts. Complainant in order to distract the other person from his wife said that he had some more money in the bedroom. The other person left complainant's wife and followed him into the bedroom where they could not find anymore money. However, that person picked up the handbag of complainant's wife and led complainant back to the sitting room. The appellant who was wearing no shirt then ordered complainant to hand over a gold chain and a Cartier gold watch he was wearing. The watch was valued at $1800 to $1900 and the chain was $2000. When appellant and the other person left, complainant could hear his wife still screaming out the Lord's prayer."

The total value of all items stolen by appellant and his colleague is $5,000.

When the robbers left, some neighbours came running to complainant's house and ran after them.

The Police were later called and as a result of their investigation the appellant was arrested and some of the stolen goods recovered.

The complainant's main concern during the ordeal was the safety of his wife and two children.

At the hearing of the appeal the appellant complained mainly that the Magistrate did not give him bail to engage a solicitor to defend his case and that the sentence of 4 years was harsh and excessive.

The appellant was sentenced to imprisonment on 19 April last year which is over a year now but was still unrepresented at the appeal. One would have thought that with the lapse of time he would have been able to engage a solicitor through the Prison Authority if he really wanted to be represented in Court by Counsel.

The record of the proceedings in the Court below shows that appellant was first brought before the Court on 10 March, 1993. The Prosecution objected to bail and the learned Magistrate refused bail and remanded the appellant in custody. On 24 March, 1993 appellant was again refused bail and appellant was advised to arrange for a counsel through the Prison Authority. On 19 April, 1993 the court was informed that the appellant had not made any request for a counsel to the Prison Authority at all.

The Court in refusing the appellant bail had exercised its discretion pursuant to Section 108 of the Criminal Procedure Code Cap. 21 after hearing submission from both the appellant and the prosecution and was perfectly entitled to, in the light of the dreadful previous criminal record of the appellant.

I can find nothing wrong or any miscarriage of justice on the part of the Court below in its refusal to grant appellant bail.

At the trial the Prosecution called the complainant and the investigation officer to testify on its behalf.

The appellant refused to cross examination or challenge the evidence of both prosecution witnesses nor did he offer any evidence to rebut that of the prosecution but elected to remain silent.

The Court below found that the prosecution had proved its case beyond all reasonable doubt and found appellant guilty and convicted him.

In this appeal I must say that the appellant did not do much, in fact did nothing at all for himself in the Court below.

It is difficult for this Court to make a balance assessment and evaluation of the evidence adduced in the court below when it is so one-sided. I cannot find any reason to fault the finding of the learned Magistrate.

For reasons stated above the appeal against conviction is dismissed.

As for the sentence, contrary to the submission of the appellant he was charged alone and not jointly with any other accused. The Accused has 28 previous convictions dating back to 1981 mostly for violence and theft. In 1983 he was convicted for 6 counts of Robbery With Violence and was sentenced to 4 years imprisonment on each count served concurrently. Again in 1988 he was convicted for Robbery with Violence and was sentenced to imprisonment for 4 years. It is evident that this appellant has never tried to reform himself and correct his ways all these years. He appears to be a dangerous person to be allowed at large. On two occasions he had served 4 years imprisonment for Robbery With Violence. The facts of this case indicate that it was a bad case of Robbery With Violence and in my view the sentence of 4 years imposed by the Court below was on the lower scale of the sentencing tariff for this type of offence as this is the third successive time he has been given 4 years imprisonment for the same kind of offence. I shall therefore quash the sentence of 4 years passed by the Court below and in substitution therefore pass a sentence of 6 years imprisonment.

The sum total of this appeal is that the appeal against conviction is dismissed and the sentence of 4 years is quashed and a sentence of 6 years is imposed in substitution therefor.

S W Kepa
JUDGE

19th August, 1994.

HAA0015J.94S