Delaitivi v State [2000] FJHC 180; Criminal Appeal 17.2000 (11 August 2000)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 17 OF 2000
(Labasa Mag. Ct. Crim. Case No. 50/2000)

Between:

JALE DELAITIVI
JONE SOKECA
Appellants

And

STATE
Respondent

Appellants in Person
Ms. Asishna Prasad for the State

JUDGMENT

On 31 January 2000 the appellants were at the Magistrate’s Court at Labasa on their own plea convicted and sentenced to 2 years’ imprisonment for the offence of robbery with violence contrary to section 293(1)(b) of the Penal Code.

The Particulars of Offence reads:

"Jale Delaitivi and Jone Sokeca on the 29th day of January 2000 at Labasa in the Northern Division, robbed Ram Krishna s/o Manuel of cash $4700.00 and at the time of such robbery did use personal violence to the said Ram Krishna s/o Manuel".

The appellants have appealed against severity of sentence. The appeal was heard in the High Court at Suva.

The facts

The appellants who were under the influence of liquor entered the Supermarket in question at Lajonia, Labasa on 29.1.2000 at about 3.30 p.m. They approached the cashier Ram Krishna (the complainant/victim in the charge) when the first appellant Jale Delaitivi fisted the cashier who fell to the floor. The second appellant Jone Sokeca got hold of the cash register and went out of the shop. Another shop assistant tried to help the cashier, but he too was assaulted by the first accused.

The two took the cash register to the waiting taxi which they hired but the driver seeing what was happening ran away. They tried to open the taxi but found it locked. They then threw the cash register several times on to the road spilling the cash. They then took the money and ran away into the bush. The appellants were located the same day at 11.00 pm at two different Night Clubs. Both were charged. The sum of $75.38 was found on the second appellant.

In the assault Ram Krishna suffered "swelling upper lip" and the other person had "swelling R lower jaw" according to the Medical Report.

First appellant’s submission

The first appellant submits that the sentence is harsh bearing in mind that he pleaded guilty but no degree of leniency has been given to him. The sum of $75.38 was found on the co-accused. He said that he does not agree with the injuries found on the complainant. The appellant says that he has been sentenced for his previous convictions.

The appellant is a 31 year old single man with an 8 acre farm in Vanualevu. He is remorseful and wants to start a new life and asks that he be given a chance.

Second appellant’s submission

The second appellant said that he went in the shop to buy more beer and when the cashier refused to give, the first appellant fisted him. He said that he only took $130 and some coins from the register.

He told the Court that he is a 30 year old married man with two children and there is no one to look after them and his farm. The appellant is pleading to Court for his release so that he can return to his family.

The Respondent’s submission

The learned Counsel for the State submitted that there are aggravating as well as mitigating factors in this case. There was violence used. The appellants have previous convictions and one of them being for similar offence.

Miss Prasad submitted that this type of offence is becoming prevalent. Although no money was recovered from first appellant he is equally guilty of aiding and abetting under s21 of the Penal Code. They both pleaded guilty to the charge.

On the principles involved in sentencing for robbery with violence she referred the Court to the Fiji Court of Appeal case of Joseva Lui & Others and The State (Crim. App.No. 5/97s FCA) and the New Zealand Court of Appeal case of
R v. Moananui [1983] NZCA 66; [1983] NZLR 537.

Counsel said that the sentence passed on the appellants was proper and it was neither harsh nor excessive. She says that the appeal ought to be dismissed.

Consideration of the appeal

I have considered the submissions made by the appellants and the learned counsel for the State.

There is no doubt that this kind of offence has become prominent in Fiji particularly in small shops. In this case although some violence was used the injuries received by the victims were minor. The manner in which the appellants went about committing the offence put fear of harm in the people in the shop particularly the victims.

The offence of robbery with violence is regarded as serious. An appropriate sentence commensurate with the gravity of the offence ought to be meted out. The Courts had to bear in mind the importance of deterrent sentences and public perception of how courts dealt with robberies. In Moananui (supra) at 540-543 are set out the range of sentences passed for robbery with violence and the two years in this case is well within the sentencing levels appropriate to the circumstances of this case.

The learned Magistrate took into account all relevant consideration and gave weight to any mitigating factors before sentencing. They both have a long list of previous convictions and the fact they were sentenced for a similar offence in the past does not seem to have had any effect on them.

The sentence is not wrong in principle. It is neither harsh nor excessive.

The appeals are therefore dismissed.

D. Pathik
Judge

At Suva
11 August 2000