Petero v The State [2002] FJHC 157; HAA0030J.2002S (30 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0030 OF 2002L

Between:

JOSE PETERO; and
JOAPE DRAUNA
Appellants

And:

THE STATE
Respondent

Hearing: 23^rd August 2002

Judgment: 30^th August 2002

Counsel: Appellants in Person
Mr V. Vosarogo for State

JUDGMENT

This is an appeal against sentence imposed in the Ba Magistrate=s Court on 8^th February 2002. The Appellants were jointly charged as follows:

Statement of Offence

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

Particulars of Offence

JOSE PETERO, JOAPE DRAUNA and another on the 5^th day of February, 2002 at Vatuyaka, Ba in the Western Division robbed DHARMEN KUMAR s/o BRIJ LAL of 5 gold rings valued at $250.00, a twisted gold chain with sovereign valued at $230.00, 1 mangal sutra valued at $480.00, 1 sony video compact disc valued at $979.00, 1 JVC video deck valued at $400.00, 7 tinned fish valued at $22.60, 3 tin corned beef valued at $8.40, 6 kilogrammes of grog valued at $150.00 and $300.00 cash to the total value of $2891.00 and immediately before such robbery did use personal violence on the said DHARMEN KUMAR s/o BRIJ LAL.

Both Appellants pleaded guilty. The facts read out by the prosecution were that the complainant and his wife operate a shop from their farmhouse in Vatuyaka, Ba. At about 12.45am, the Appellants approached the shop to buy cigarettes. When the complainant opened the door to take the money for the cigarettes, the Appellants entered and tied him up. They pushed his wife on to the floor, and ransacked the drawers. They stole the items specified in the charge. The complainant was threatened with a knife by one Nacanieli who had accompanied the Appellants.

After the robbery, the Appellants left in a vehicle driven by Nacanieli. The facts also disclosed that the Appellants and Nacanieli had planned the robbery on the day before. Some items were recovered.

These facts were admitted by the Appellants. They also admitted previous convictions. The 1^st Appellant had 6 previous convictions from 1993, two of which were for robbery with violence. The 2^nd Appellant had 9 previous convictions, of which one was for robbery with violence and three for larceny from person.

In mitigation the 1^st Appellant said he was 24 years old, married, had a pregnant wife and had a difficult childhood. He was a casual labourer at Suva wharf and did not benefit from the robbery because the other offenders had taken the jewellery. He said he committed the offence to make money.

The 2^nd Appellant said he was 21 years old and married with a baby. He said that he did not benefit from the robbery and was a casual labourer at Suva wharf. He expressed remorse and said he was the only breadwinner in his family.

The Magistrate said that both Appellants had mitigated extensively, and had both offended since the age of 15. He said that each Appellant was blaming the other for benefiting from the robbery and said he did not believe them and thought they had disposed of the jewellery by selling it to a receiver. He said he would have sentenced the Appellants to 5 years imprisonment each, but gave them 6 months discount for their guilty pleas.

The Appellants appeal against their sentences on the ground that they are harsh and excessive. They each said in their written submissions in court, that enough had not been put on their family circumstances. Further they said that more lenient sentences had been given to other offenders for the same offence.

The State opposes the appeal, saying that the sentences are at the lower end of the tariff for robbery with violence.

I agree. The tariff for robbery with violence, without firearms, and committed on shops, banks or service stations, is four to seven years imprisonment.

In this case, the complainant lived in an isolated rural area and ran a shop on which, no doubt, the community depended. The offence was committed in the middle of the night, and a knife was used by the Appellants= accomplice. There was evidence of premeditation. In the circumstances great weight must have been placed on the guilty pleas and the family circumstances. The end result of 42 years imprisonment was not wrong in principle nor harsh and excessive. As to the complaints of disparity of sentencing in other cases, all sentencing in Fiji is individualised. It is based on the facts of the particular case, and the circumstances of the offender. Just as no two offenders are exactly the same, so no two sentences can be calculated in exactly the same way. Thus the previous good character of one offender may lead to a substantial reduction of sentence for one offender. Another, charged with the same offence, but with a list of previous convictions, may not be shown the same leniency.

The appeals against sentence are wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
30^th August 2002