Keretabua v The State [2000] FJHC 130; Haa0077j.2000s (1 December 2000)

Fiji Islands - Keretabua v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0077 OF 2000S

(Nausori Criminal Case No. 141/2000)

BETWEEN:

SEVULONI KERETABUA; and

SERUPEPELI TILODROKA

Appellants

AND:

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> THE STATE

Respondent

Counsel: Appellants in Person

Mr W. Kurisaqila for for Respondent

Hearing: 24th November 2000

Judgment: 1st Dece2000

JUDGMENT

This is an appeal against sentence passed by the Nausori Magistrates Court on 23rd March 2000.p class=MsoNormal style="mae="margin-top: 1; margin-bottom: 1">

The Appellants were charged of the following offences:

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FIRST COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Cap 17.

Particulars of Offence

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> SEVULONI KERETABUA, SERUPEPELI TILODROKU and two others, between the 19th day of March 200 the 21st day of March, 200, 2000 at Suva in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing took to their own use motor vehicle registration number DG494, the property of SALANIETA BAKALEVU.

SECOND COUNT

Statement of Oe

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of Penal Code, Cap. 17.

Particulars of Offence

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SEVULONI KERETABUA, SERUPEPELI TILU and two others, on the 21st day of March, 2000 at Nausori in the Central Division, robbedobbed KAMAL CHAND d/o GUPTAR CHAUDHARY of $3977-00 in cash, the property of Bank of Baroda and immediately before such robbery threatened to use personal violence to the said KAMAL CHAND d/o GUPTAR CHAUDHARY.

THIRD COUNT

Statement of Offence

POSSESSION OF AMMUNITION WITHOUT LICENCE: Contrary to section 4(1) and (2) of Arms and Ammunitionition Act, Cap. 188.

Particulars of Offence

SEVULONI KERETABUA, on the 21st day of March 2000 at Nausori in the Central Divisiot being a person exempt by t by section (3) of Arms and Ammunition Act Cap 188 was in possession of 10 live rounds and 1 empty cartridge of ammunition when he was not the holder of any licence or permit in that respect.

FOURTH COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of Penal Code, Cap. 17.

Particulars of Offence

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SERUPEPELI TILODROKU and two others on the 21st day of March, 2000 atori in the Central Division, unlawfully and without colour lour of right but not so as to be guilty of stealing took to their own use motor vehicle registration number DN821, the property of DHARMENDRA KUMAR s/o JAG DEO.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Appellants pleaded not guilty to Count One, and guilty to Counts Two, Three and Four.

The facts as outlined by the Prosecution were that, on 21st March 2000, the Appellants with two others we Nausori town by a car and and parked the car at the Town Council Arcade. The Arcade was opposite the Bank of Baroda. The security officer at the Bank saw the Appellants, and their companions, get out of the car with masks on. He became suspicious, and locked the main doors of the Bank. The Appellants, who were armed with knives and a firearm, forced their way into the Bank after damaging the door. They threatened a bank officer with their weapons, stole $3977.00 and escaped. They tried to get away in the vehicle, but it broke down. The 1st Appellant was apprehended by members of the public, near the Golf Course. The 2nd Appellant assaulted a 17 year old student who was driving his car, took the car from him and drove towards Baulevu. He was later apprehended. The second vehicle was found badly damaged. The 1st Appellant was found with 10 live rounds of ammunition, and an empty cartridge. They were both interviewed and charged. The firearm and the stolen cash, were never recovered.

The Appellants disputed the use of the vehicle, but admitted the facts in respect of the other offences. Tere convicted on Counts Twos Two, Three and Four and sentenced as follows:

Count Two - 5 yimprint each each;

p class=MsoNormale="ale="tedent: -70.35pt; mpt; marginargin-left: 106.35pt; margin-top: 1; margin-bottom: 1"> Count Three - 1st Appellant senteto 1 year imprisonment to run consecutively;

Count Four - The 2nd Appelsentenced to d to six monthrisonment to run concurrentrrently.

The Appellants now appeal against these sentences. Theress remorse, and ask for leniency. They made full written submissions in court, referring ring to previous cases of armed robbery which led to more lenient sentences. They both asked for reduction in their sentences.

State Counsel opposed any such reduction. He said that the term of 5 years imprisonment was already lenient, given themum term of life imprisonmesonment provided by statute, and other comparable cases. He referred to the increasing use of arms in Fiji, and the public interest in passing deterrent sentences.

In R -v- Turner & Others 6 Cr. App. R. 61, the English Court of Appeal in a sentencing guideline judgment, said that the normal sentence for anyone taking part in a bank robbery, should be 5 years imprisonment, if firearms were carried; and no serious injury was inflicted. At page 91 of the judgment, Lawton LJ said:

“It follows therefore that the starting point for considering all these cases is a sentence of 15 years. As was pointed out in argument, the fact that a man has not much of a criminal record, if any at all, is not a powerful fact to be taken into consideration when the court is dealing with cases of this gravity.”

In Fiji, sentences of 6, 7 or 8 years imprisonment have been confirmed for offences of Robbery with Violence (Iliaseri Saqasaqa Appeal 19 of 1988, Apenisa Ralulu -v- State App 9 of 1995, Joseva Lui & Ors -v- State App No. 5 of 1997).

In State -v- Kemueli Bale Verebalavu Mis. Case No. 06 of 1998, on a committal to the High Court for sentencing, Pain J imposed 6˝ years imprismprisonment for a planned robbery where the Appellants wore masks, carried a weapon and caused serious injury to the victims.

It is certainly true that some offences of Robbery with Violence have attracted less severe sentences. However the factRobbery offences can differiffer widely, and the use of arms or other weapons, the robbery of a bank, the infliction of injuries, and the substantial value of the property taken, are aggravating factors which will lead invariably to a substantial term of imprisonment.

In the case of the 1st Appellant, given the use of the firearm and , the use of masks, the fact that the robbery was at a bank, and the fact that the robbery bery was obviously planned, a sentence of eight years imprisonment might have been justified in the High Court. The only mitigating circumstances appear to be the pleas of guilty, and the 1st Appellant’s claim that he was not a principal offender.

In the case of the 2nd Appellant, the same aggravating circumstances exist. In mitigation he said he did not know that a fireould be used. He also pleadpleaded guilty. There was no recovery of either firearm or the stolen money. Both Appellants have previous convictions, although there are none for Robbery.

In these circumstances, it is difficult to see how the learned Magistrate might have erred in imposing a 5 year term on Count Two. He made it clear that if injuries had been inflicted in the course of the robbery, he might have considered a referral to the High Court for sentencing.

A sentence of the Magistrates Court may be set aside by the High Court, if turt erred in principle, or imposed a sentence which was mans manifestly lenient or excessive. This is not one of those cases. The sentences on Counts Two, Three and Four are correct in principle and are not manifestly excessive.

The appeals are therefore dismissed.

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Nazhat Shameem

JUDGE

At Suva

1st December 2000

HAA0077j.00s