LIVAI TAMANALEVU on the 15th day of February 2001 at Suva in the Central Division unlly and without colour of r of right but not so as to be guilty of stealing,
took to his own use taxi Reg. No. CU806 the property of SUNIL CHAND s/o Deo Chand.
THIRD COUNT
Statement of ce
LARCENY: Contrary to Section 259(1) and 262(1) of the Penal Code, Act 17.
Particulars of Offence
>
LIVAI TAMANALEVU on the 15th day of February 2001 at Suva in the Central Division, stolexi meter valued $600.00 the0 the property of SUNIL CHAND s/o Deo Chand.
The Appellant pleaded guilty to each of these counts before the learned Chief Magistrate who sentenced him on Count 1 (on each file)
to r imprisonment, on Count 2,nt 2, to 2 months imprisonment and on Count 3, to 6 months imprisonment. These terms were concurrent
to each other, but consecutive to the similar sentences passed on his other files. The total term passed was 7 years imprisonment.
It seems clear from the court records on each of the files, that the learned Chief Magistrate sentenced the Appellant to each term,
with a view to imposing a total term which reflected the total offending.
In his appeal against these sentences the Appellant submits that he had assisted the police in their investigations, no injuriee inflicted
on the complainplainants, he was a first offender, he pleaded guilty, all the items had been recovered, and the sentences were harsh
and excessive.
State Counsel submitted that terms of 1 years imnment was in fact very lenient given the tariff of Robbery with Violence, of four
to seven even years imprisonment. They submitted that all the mitigating factors had been taken into account by the learned Chief
Magistrate, and that the appeals should be dismissed.
These twelve appeals reflect an offending “spree” undertaken by the Apnt to terrorise taxi-drivers, take their taxis from them, and
then to steal their taxi mete meters. The taxi meters which are said to be valued at $600.00 were evidently the purpose of the scheme.
In some of the incidents a penknife was used by the Appellant to frighten the taxi-driver. Prior to these convictions the Appellant
had only one previous conviction, for Unlawful Use of Motor Vehicle. He helped the police to recover the taxi meters, and he pleaded
guilty at the first opportunity. No injuries were inflicted on any of the taxi-drivers.
In all the circumstances, a sentence of 1 imprisonment for an attack on a taxi-driver, and the theft of his taxi meter after the
unle unlawful seizure of the taxi, is manifestly lenient and wrong in principle. The Court of Appeal and the High Court have said
on many occasions that Robbery with Violence is a serious offence, which calls for a deterrent sentence. In Ilaisa Sousou Cava -v- The State, I set the tariff, after considering local and New Zealand precedents, as being between four and seven years. An attack on a defeceless
taxi-driver, the use of a pen-knife, the taking of his taxi meter and taxi are all aggravating circumstances, and are circumstances
which would not justify a sentence far below the tariff.
In all the circumstances, I would consider a sentence of five years imprisonment to be a far more appropriate sentence for the offence
of Robbery with Violence, after considering the Appellants guilty plea, his assistance to the police and his apology to the taxi-drivers.
In respect of Count 2, on each of the files, the Unlawful Use of Motor Vehicle, which is a prevalent offence attracts a maximum sentence
of six months imprisonment. In the circumstances a sentence of 2 months imprisonment is not wrong in principle. Similarly, a term
of 6 months imprisonment for the larceny of a taxi meter, might appear to be lenient, given the value of a taxi meter. However the
Appellant helped the police to trace and recover the taxi meters and he should be given considerable credit for that. Furthermore,
he told the police who the receiver was, and such information is invaluable in preventing such crimes in the future. The sentences
of 6 months imprisonment is therefore not wrong in principle.
The next question is whether the sentences on the three counts on each file should be served concurrently or consecutively.
The principles applicable to imposing consecutive or concurrent sentences of imprisonmee that the decision is discretionary but that
separate and and distinct offences should attract separate and consecutive sentences. In R -v- Greenberg (1943) KB 381 at p.383, the Court of Criminal Appeal said:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “When a man is found guilty of two misdemeanours, being separate and distinct offences prehend it makes no kind ofnd of difference
whether it be by two indictments simultaneously tried and found against him, or upon two counts in one and the same indictment),
there not only a competent but the proper course was and is to pronounce a second term of imprisonment (assuming it to be within
the power of the court as to duration), to commence and begin after the expiration of the first.”
In Krishna and Others-v- Reg [1962] 8 FLR 236,.237, MacDuff CJ said:
“The practice is, where a pecommits more than one offence at the same time and in the same transaction, save in very exry exceptional
circumstances, to impose concurrent sentences.”
Turning therefore to the cases of the Appellant, C 1, 2 and 3 on each file were part of one transaction, and the order to impose concurrent
sent sentences was therefore right in principle.
The next question is whether the total sentence on each file, should rved concurrently or consecutively. An order for consecutive
sentences would obviously be f be far beyond the jurisdiction of the Magistrates Court. Furthermore, the Court’s duty after imposing
sentence, is to ensure that the sentence is proportionate to the total offending.
In this case, a sentence of 5 years imprisonment is proporti to the gravity of the total offending. As such, it would have been proper
to order that that the total sentences of five years imprisonment on all twelve files be served concurrently.
To this end, the total sentences imposed by the Magistrates Court are quashed, and substituted with a sentence of five years imprisonment
on each file, to be served concurrently. The Appellant will therefore serve a total of 5 years imprisonment. The appeal succeeds
to this extent.
Nazhat Shameem
JUDGE
At Suva
6th July 2001
Haa0016J.01S
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2001/42.html
