King v The State [1999] FJHC 17; Haa0046j.98b (22 March 1999)

Fiji Islands - King v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0046 OF 1998

IGN=CENTER>BETWEEN:

:

JOHN KING
Appellant

AND:

THE STATE
Respondent

&n/p>

Appellant in Person
Ms. A. Driu for the Respondenondent

JUDGMENT

On the 3rd August 1998 the appellant was convicted by the Labasa Magistrate Court after he pleaded 'guilty' to an offence of Robbery with Violence in which it was alleged that he and another unnamed co-accused had robbed the complainant and had used personal violence on her at the time.

Very briefly, the facts of the case are that on the day in question the appellant and his co-accused boarded the same bus as the complainant, a 76 year old woman, and alighted at the same stop as the complainant at Vunivau.

They then followed the complainant along a side track and, at a secluded spot, proceeded to rob the complainant of her necklace of eighteen (18) gold sovereigns. In the process they also assaulted the complainant who sustained 'circular bruising around the neck' obviously caused by the forceful wrenching of the necklace cord from her neck.

Upon his conviction the appellant was sentenced to four (4) years imprisonment for his part in the Robbery. His co-accused remains at large and has not been dealt with.

The appellant now appeals against both his conviction and sentence on several grounds which will be dealt with in the course of this judgment.

As for his conviction the appellant complains in his written submission that he was 'just an accessory after the fact to the above offence' and on the authority of R. v. Rowley (1948) 32 Cr. App. R. 147 (which this Court accepts was correctly decided), he questions whether it was proper to accept his 'guilty' plea since the principal offender, his unnamed co-accused, remains at large.

Given the above the appellant writes that '(he) should be charged under Section 123(2)' of the Penal Code presumably. I cannot agree. A little knowledge is a truly 'dangerous thing'.

In the first place, Section 123(2) of the Penal Code reads:

'Every person who incites or attempts to procure or suborn another person to commit an offence against any of the six preceding sections of this Code is guilty of a misdemeanour.'

The 'six preceding sections' underlined and referred to in the above Subsection are Sections 117 to 122 inclusive, which deal with offences of Perjury and Making False Statements and Declarations for various specified purposes.

Plainly, Section 123(2) has no application to the offence of Robbery with which the appellant was charged and is utterly irrelevant to the facts of the case outlined by the prosecutor and admitted by the appellant.

As for being 'an accessory after the fact', Section 388 of the Penal Code defines such a person as:

'(one) who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.'

Again by no stretch of the imagination can it be said that the facts outlined in the Magistrate Court and admitted by the appellant, supports the appellant's claim that he came within the statutory definition of: 'an accessory after the fact'.

Plainly, the appellant was not an 'accessory', if anything he was a joint offender on his own admission in his Petition of Appeal that 'this incident involve me and another person which the police officer have already aware of'.

In this latter regard the relevant Sections of the Penal Code under which the appellant and his co-accused would have been charged are, Sections 21 & 22. Section 21 reads:

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it that is to say -

(b) every person who does ... any act for the purpose of enabling or aiding another person to commit the offence; (such as a person who holds the victim down)

(c) every person who aids and abets any person in committing the offence; (such as a 'look-out')

(d) any person who counsels or procures any other person to commit the offence' (such as a 'mastermind').

Of greater relevance however, to the facts of this case is, Section 22 which provides:

'When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and ... (in performing such purpose) an offence is committed ... each of them is deemed to have committed the offence.'

There is no merit whatsoever in the appeal against conviction which is upheld.

As for the sentence of four (4) years imprisonment the trial magistrate in his sentencing remarks quite properly said that a deterrent immediate custodial sentence was warranted. He also noted the appellants 'seven previous convictions' which includes Larceny from the Person and 'Attempted Larceny from the Person', and took into account 'the mitigation and personal circumstances of the accused'.

The appellant who is 21 years of age, in seeking this Court's leniency refers to the broken, love-less environment in which he was raised and professes to 'have found inner-peace through dedicating and sacrificing myself to the Lord'. He asks to be allowed to return to his home island of Rabi in order 'to forget about the scars that had been hurting me for the past 20 years'. It is a pity he had not thought of returning earlier.

If the appellant was a first-offender and the offence was not so serious or prevalent, this Court would have been able to show him some leniency. But neither factor is present in this case. Prison is not new to the appellant who has clearly learnt nothing from having experienced it on several occasions before now.

Furthermore this was not an opportunistic robbery that occurred on the 'spur of the moment'. It was planned at all stages. The victim was chosen - a helpless unaccompanied elderly woman; the venue was chosen - a secluded spot along a side track some distance off the main road; and the manner of the robbery was calculated - it involved two (2) people; and was aggravated by the use of gratuitous violence after the forceful removal of the complainant's necklace which has not been recovered.

In light of the foregoing there is no merit in the appeal against sentence which is accordingly dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
22nd March, 1999.

Haa0046j.98b