THE STATE
Respondent
Appellant in Person
Miss Andie Driu and Miss Razia q for the Respondent
Date of Hearing: 3rd October 1996
Date of Judgment: 3rd October 1996
JUDGMspan>
These are four appeals against severity of sentence imposed by the Suva Magistrate's Court on the Appellant on the 6th of May 1996
when the Appellant pleaded guilty to six charges. In their chronological order they are as follows:
That on the 13th of September at Lami in the company of another person the Appellant robbed Yuen Ping Teng of a cash regh register
valued at $1,500.00 and cash of $1,000.00 and at the time of such robbery used personal violence against Yuen Ping Teng.
The two next charges are robbery with vce in company under Section 293(1)(a) of the Penal Code Cape Cap. 17 and unlawful use of a motor vehicle contrary to Section 292 of the Penal Code.
The first charge is that the Appellant with another on the 22nd of September 1994 at Lami robbed Moh'd Mustaq Khan of a taxi meter
valued at $550.00, a wrist watch valued at $45.00 and cash of $25.00 and at the time of such robbery used personal violence on Moh'd
Mustaq Khan.
The second charge is on the same day at Lami with another he unlawfully used a motor vehicle registNo. BH944 the property of M of
Moh'd Mustaq Khan.
The fourth charge is that on the 27th of June 1995 at Suva he robbed David Greenwoodis wallet valued at $20.00 0.00 and bank book
valued at $2.50 contrary to Section 293(2) of the Penal Code.
The last two charges relatthe time when the Appellant was arrested and charged that on 23rd of November 1995 at Suva Suva he resisted
arrest. The second charge is that on the same day at Suva he damaged one louvre blade valued at $1.00 and wire netting in the cell
valued at $29.00, the property of the Fiji Police Force.
On the charge of robbery with violence on the 13th of September 1994 the Magistrate sentenced ppellant to 5 years imprisoprisonment
concurrent with the other sentences he imposed to which I shall come now.
On the charges of robbf a taxi driver and unlawful use of a motor vehicle on the 22nd of September 1994 the learnlearned Magistrate
sentenced the Appellant to 3½ years imprisonment on the first count and 6 months imprisonment on the second count both to be consecutive
to each other but concurrent with the sentences he imposed in respect of the remaining charges. These were on the charge of robbery
of the car driver on the 27th of June 1995 a sentence of 14 months imprisonment and on the charges relating to resisting arrest and
damage to Police property imprisonment for 4 months on both counts to be concurrent but consecutive to the sentence of 14 months
in respect of robbery of the car owner.
With regard to the charge of the 22nd of September 1994 although those charges read that the Aant was in company of anothanother,
he was actually in company with three others who are well known criminals namely Alifereti Smith, Nemani Kaverevere and Berati Vetara.
The Appellant complains that although the latter three have criminal records much longer that of himself, which is cons conceded by
the State, they received much lower sentences for their part in the robbery of the taxi driver than the Appellant. This unfortunately
is true in that each came before different Magistrates on different dates but all three received similar sentences. Berati Vetara
appeared in Court on the 2nd of August 1995 and was sentenced to 2 years imprisonment on the charge of robbery of the taxi driver
and 3 months imprisonment on the charge of unlawful use of the motor vehicle concurrent with the sentence on the first charge.
Likewise Nemani Kaverevere appeared on the 28th of July 1995 before a different Magie and received similar sent sentences to those
imposed on Vetara.
Alifereti Smith appeared on the 13th of January 1996 and also receivmilar sentences to those ofse of Vetara and Kaverevere.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I say immediately that in my opinion, given the criminal record of those three sentences imposed on them them by the respective Magistrates
were far too low. Had I been the sentencer I would have imposed a sentence of not less than 3½ years imposed on the Appellant in
respect of his part in the offences.
I shall now mention the facts rel to each charge which the Appellant admitted. On the charge of robbery of the Chinese citizcitizen
on the 13th of September 1994 the Court record reads as follows:
"The accused, with another, went inside the shop and had their faces covwith masks and carried a ca a caneknife each. They threatened
the complainant's daughter to open the cash register.
The complainant's daughter was frightened and opened the cash register. The accused and his friend took $1,000 cash and till and they
fled.
Later the Appellant was arrested. No property was recovequot;
In passing sentence the learned Magistrate said he had listened carefully to his plea in mitigation but the charge, nevertheless,
was very serious. He said, "The citizen honestly earning his money through trade, has been subjected to a terrible experience
by the accused and his friend.
Wearing masks and armed with caneknives and threatening unarmed female civilian is a cowardl. It must be discouraged. Ted. The Court
is duty bound to protect the people by issuing stiffer penalties for those who deliberately wrong against the community."
He then convicted the Appellant and sentenced him to 5 years imprisonment concurrent with hisences on the other charges.rges.
The facts relating to the charges of robbery of the taxi driver and unlawful use of his taxi are as follows:
On 22nd September 1994 at 10.30 a.m. the accused with three others hired a taxi from Suva and asked to be taken to Lami near the Father
Law Home. At the end of the nearby road the accused and his friends asked the taxi driver for money who refused the same.
The accused who was sitting behind the driver placed a small knife on the driver's neck. The driver then gave $25.00, got hold of
the knife and there was a struggle. The three others pulled the driver ouf his seat and the accused took the driver's watch from
his wrist. After that they placed the driver in the boot of the car and one of the accomplices drove the car.
When the car reached thhway junction it stopped, the complainant forced open the boot and jumped out.
The accused gave chase but did not catch the drive returned to the car which was abandoned at Kalekana Road aoad and the taxi meter
was removed.
In passing sentence on those charges thistrate said,
"The offence nevertheless is very serious as a taxi driver has been robbed with the aid of a knife. This makes the offences very
serious and a custodial sentence is called for.
Also accused was part of a group that terrorised the complainant and robbed him of his watch, tch, taxi meter and $25.00. They took
his car without authority."
He then convicted the accused and sentenced him to 3½ years on the first count and 6 months imprisonment on the second both to be
consecutive but concurrent with the sentence of 14 months imposed for robbery of the car driver on the 27th of June 1995 and 4 months
concurrent on the charge of resisting arrest and damaging Police property.
The facts admitted by thellant on the charge relating to the 27th of June 1995 at 6.50 p.m. are that, the complainalainant, aged 57
drove his car into his compound at Raiwai. When he stepped out of his car the accused and another who were hiding in the compound
ran towards the complainant. The accused got hold of the complainant while his accomplice removed the complainant's wallet and cheque
book and they both ran away.
The last charges relate to resisting arrest and causing damage to Police property. At the time the accused was drunk and started to
punch a Police Officer. He was subdued and taken to the Raiwaqa Police Station.
While in a Police cell, there at 3.00 phe accused damaged one louvre blade and wire netting.
The Appellant has a criminal record dating from 14th April 1991 of criminalpass to two convictions fors for robbery with violence
for which he received a total of 32 months imprisonment, larceny and house breaking, entering and larceny. There are two other charges
of escaping from lawful custody for which he received a total sentence of 4 months imprisonment.
Having considered the Appellant's submissions I am satisfied that the sentences on all the charges except those relating to the robbery
of the taxi driver and unlawful use of the motor vehicle on the 22nd of September 1994 are correct. However in my view the Appellant
has reason to complain about the disparity in the sentence he received for those charges compared with the sentence imposed on his
accomplices.
While there should as far as possible be parity in sentencing, nevertheless if ond Court imposes what an A an Appellate Court considers
was an appropriate though heavier sentence the Appellate Court will normally not interfere. During the course of argument I mentioned
the decision of the New South Wales Court of Criminal Appeal in R. v. Tisalandis (1982) 2 NSWLR 430 of which learned counsel for the Respondent were unaware.
The headnote to that case reads as follows:
"Of two co-offenders of equal criminality one was dealt with on a plea and released on a recognizance whereas the appellant went
to trial before a different judge. He was sentenced to two concurrent periods of three years, with a one year non-parole period,
for malicious wounding.
Held: (1) The disparity between the sentences was so gthat both decisions could nuld not be accommodated on some view of judicial
discretion; however, as the sentence imposed on the appellant was not in the higher end of the discretionary range a material reduction
would make it an insufficient sentence and would amount to replacing a proper sentence with an inadequate and erroneous one.
R v d (1977) 65 Cr App Rep 150, applied.
R v Potter (1977) Crim LR 112, not followed."
At page 440 Moffitt P. quoted with approval the remarks of Roskill LJ in R. v. Stroud (1977) 65 Cr App Rep 150 where His Lordship said at page 152:
"Thus we are faced with this disparity and we are invited to reduce Stroud's sentence in order to bring it into line with Neighbour's
inadequate sentence. That, as I have already said, involves the proposition where you have one wrong sentence and one right sentence,
this Court should produce two wrong sentences. That is a submission which this Court cannot accept."
President Moffitt then continued:
"Of the English decisionsould, with respect, adopt this as the preferred view."quot;
With respect I agree and shall assume for present purposes th is also the law in Fiji. Naturally the Appellant feels aggs aggrieved.
His accomplices who have worse criminal records than he nevertheless received much lighter sentences for the two offences. The Appellant
told me that he mentioned this to the trial Magistrate but there is nothing in the record to confirm this. I consider that the sentence
of 3½ years imposed on the Appellant was correct and for reasons given in Tisalandis will not interfere with it. However the sentence of 6 months imposed on the Appellant for unlawful use of the motor vehicle is the
maximum sentence for this offence and I consider it should be reduced.
Had I bhe sentencer I would have passed a sentence of 4 months imprisonment but as there is hardlyardly any difference between that
and the sentence imposed on his accomplices I consider it only fair to the Appellant that the sentence of 6 months should be reduced
to 3 months to run concurrently with the sentence of 3½ years. The result is that the appeal is upheld in part. I see no reason to
interfere with the sentence of 5 years for robbery with violence considering the maximum sentence for this is life imprisonment.
For the sentence of 3½ years and 6 months imprisonment on the charge of robbery of the taxi driver and unlawful use of the motor
vehicle there will be substituted a sentence of 3½ years on the first charge and 3 months on the second to be concurrent.
On thrge of robbery of the car driver on the 27th of June 1995 I see no reason to interfere with with the sentence of 14 months imprisonment
bearing in mind the maximum for this offence is 14 years with or without corporal punishment.
Nothing need be said about the sces for resisting arrest and damage to Police property except that I consider no fault can can be
found in the learned Magistrate's sentence.
The effective result of the appeal is that the Appellant is to serve 5 years imprisonment imposed on him for robbing the Chinese Storekeeper
on the 13th of September 1994.
In his plea for mitigation the Appellant stated that his father had left him at te of 12 and as he was the ethe eldest of the six
children he had to help his mother to provide for the family from an early age which denied him the opportunity of an education.
This led him to encounter youths from the same social and economic background as himself and into a life of crime. He also said,
to para-phrase him, that as a result of his time in prison he had found God. Without wishing to be cynical, time and again Judges
and Magistrates hear a similar confession. The pity is that in all too many cases having found God in prison, immediately prisoners
are released from prison they lose Him again.
However the Appellant may be anption. He is young enough to make a new start and I hope he is able to do so when released.ased.
I received a letter from the Prisons wship of Fiji dated 2nd of October 1996 concerning the Appe Appellant. The authors of the letter
say that the Appellant has been regularly attending their weekly scripture classes for the past four months. They attribute his problems
to being left fatherless at the age of 12 and more so, peer pressure. They say he has shown genuine interest in being reformed. I
appreciate that peer pressure particularly in young people such as the Appellant can be a real factor in crime. Nevertheless I consider
it would be wrong for me to reduce the total sentence of 5 years imprisonment which I now confirm.
The order of the Court is that with the excepti the charges relating to the offences of the 22nd of Septemeptember 1994 the appeal
is dismissed.
E. BYRNE
JUDGE
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Legislation and cases referred to in judgment:
Penal Code Cap. 17.p class=MsoNormal style="margin-top: 1; margin-bottom: 1"> R. v. Tisalandis (1982) 2 NSWLR 430.
R. v. Stroud (1977) 65 Cr App Rep 150.
Haa0051j.96s
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