Tikoicina v The State [1995] FJHC 150; Haa0032j.95b (21 September 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 32 OF 1995

Between:

1. JOSEFA GUMATUA TIKOICINA
2. LOTA DAUNILAU
3. MICHAEL SEVU
Appellants

- and -

STATE
Respondent

The Appellant in person
Ms Laisa Laveti for the Respondent

JUDGMENT

On 13 June 1995 in the Magistrate's Court at Labasa the appellants were on their own plea convicted and sentenced to three years' imprisonment for the offence of robbery with violence contrary to section 293(1) of the Penal Code Cap. 17.

This is essentially an appeal against severity of sentence although a number of other grounds have been raised.

Each Appellant has made lengthy written submission which was read out to Court. Their submissions boil down to this that they repent for what they have done and that their families are suffering. They are each pleading for a reduction in sentence.

The learned State Counsel in opposing the petition stated that the term of imprisonment for an offence of this nature is in no way harsh and excessive bearing in mind all the circumstances of this case and injuries received by the victim who was a taxi driver.

In this case the appellants acted in concert and had planned to rob the taxi driver. Each played an equal part in the commission of the offence which is of a serious nature. It is a prevalent offence in Fiji.

Although the first Appellant had two previous convictions in 1987, I would for the purposes of considering the appeal regard him as a first offender. In this case the learned Magistrate was right in imposing the same sentence on each of them after taking into account the mitigating factors and stated that this type of "offence is on the increase in the country and it calls for stern and deterrent action". In ARCHBOLD 1992 Ed at para 738 it is stated:

"Where two or more offenders are to be sentenced for participation in the same offence, the sentence passed on them should be the same unless there is a relevant difference in their responsibility for the Offence or their personal circumstances."

I have listened to the points made by each accused, and I am not persuaded that the learned Magistrate erred in principle in imposing the sentence he did. Normally an appeal against sentence would succeed only where the sentence was unlawful, wrong in principle or manifestly excessive. It is clear from their submissions that the appellants are being wise after the event. Now they realize the folly of their ways. Just because they were clerical officers with the Public Works Department does not mean that they can be treated differently from others.

They should blame themselves for their families' sufferings and there is nothing that this Court can do to assist them.

It must be realized that taxi drivers pursuing their legitimate business are entitled to the full protection of the law against this type of offence.

On sentence for robbery with violence there is a useful summary of guidelines to be adopted in the judgment of GRANT C.J in LAISENIA VATEITEI and REGINAM (Crim. App. No. 83/76) (where three and half years' imprisonment was given) and which I have borne in mind in this case. There GRANT C.J says:

"It is well established that the prevalence of an offence is a most relevant consideration in sentence......................................... It is a truism that "a sentence ought to bear a proper relation to the gravity of the offence" (R. v. Bullock (1958) (The Times July 22), but it is difficult to see how this fundamental principle can justify a sentence of only fifteen months' imprisonment for the offence of robbery with violence which is one of the most serious in the criminal calendar and for which the Legislature has provided a maximum custodial sentence of life imprisonment. A Court is always entitled to take into account the prevalence of an offence in the sentence it imposes (R. v. Kent (1959) Crim. L.R. 468; R. v. Lee (1962) Crim. L.R. 500; R. v. Gosling (1964) Crim. L.R. 483; R.v. Baker & Hawkins (1967) Crim. L.R. 118; R. v. Raphael (1972) Crim. L.R. 648); and in the case of deterrent sentences, which the grave offence of robbery with violence fully justifies, individual considerations are irrelevant (R. v. Stewart (1961) Crim. L.R. 844; R. v. Curbishley & Ors. (1964) Crim. L.R. 555; R.v. Fletcher (1965) Crim. L.R. 564; and R. v. Dargue (1965) Crim. L.R. 665). As was stated by the English Court of Criminal Appeal in R. v. Fitzgerald (1958) The Times October 14 "The principle must be observed that the punishment must fit the crime and it is not always the case that the punishment must fit the criminal."

For these reasons after taking into account whatever mitigating factors there were and the principles applicable in sentencing for an offence of this nature, I am unable to say that the learned Magistrate imposed a sentence which was out of the range of sentences for offences of this kind and consequently the appeal is dismissed.

D. Pathik
Judge

At Labasa
21 September 1995

HAA0032J.95B