Koroivuki v The State [2002] FJHC 181; HAA0078J.2002S (15 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0078 OF 2002S

Between:

ISOA KOROIVUKI
Appellant

And:

THE STATE
Respondent

Hearing: 8th November 2002
Judgment: 15th November 2002

Counsel: Appellant in Person
Mr N. Lajendra for State

JUDGMENT

The Appellant appeals against his total sentence of 12 months, imposed by the Suva Magistrate=s Court on 21^st August 2002, for the following charges:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Act. 17.

Particulars of Offence

ORISI SUGUTA, ISOA KOROIVUKI and 4 others, on the 18^th day of August, 2002 at Suva in the Central Division, robbed ANASA BALEISUVA of cash $20.00, one wrist watch valued at $200.00 and one wallet valued at $10.00, to the total value of $230.00 and immediately before such robbery, did use personal violence on the said ANASA BALEISUVA.

THIRD COUNT

RESISTING ARREST: Contrary to Section 247(b) of the Penal Code, Act. 17.

Particulars of Offence

ISOA KOROIVUKI on the 18^th day of August, 2002 at Suva in the Central Division, resisted arrest by Special Constable Number 339 ARTHUR DAVIS in due execution of his duty.

In the Magistrate=s Court, the Appellant and his co-accused (who were represented by counsel) pleaded guilty on all counts. The first accused was charged also (on Count 2) of the offence of resisting arrest). The facts were then outlined. They were that on the 18^th of August 2002 at Raiwaqa at about 8.30pm, the Appellant and his co-accused with others were drinking beer when the complainant, a 20 year old youth, walked past them. The Appellant demanded cash from him. The complainant said he had none. A few minutes later the Appellant challenged the complainant to a fight. The Appellant and his co-accused then assaulted the complainant until he fell. The others in the group with the Appellant, then punched and kicked the complainant while he lay on the road. Someone in the group told the others to search his pockets. The complainant was able to run away and report the matter to the police. Stolen from him during the robbery were a wristwatch and cash in a wallet. The police found the Appellant at the scene. He resisted arrest, but was taken to the police station where he confessed to the police.

The complainant received injuries as a result of the incident. They were a lacerated wound 5cm x 1cm near the left eyebrow, a lacerated wound above the right eye and haematoma, or bruising over both eyes.

The Appellant agreed to these facts. He was convicted. In mitigation he said he was 21 years old, that he had pleaded guilty and that he knew he had offended during the operational period of a suspended sentence.

The learned Magistrate then sentenced both offenders, giving the first accused a suspended sentence on the ground that he had only one previous conviction in 1997, but imposing a 12 month custodial term on the Appellant. On Count 3, the Appellant was given a three month term of imprisonment to be served concurrent to the term imposed on Count 1. The question of the activation of his suspended sentence was adjourned to another date. I was told by State counsel that that matter is yet to be heard.

The Appellant appealed against conviction and sentence. However at the hearing of this appeal, he proceeded with his appeal against sentence only. He submitted that the learned Magistrate failed to give any weight to his plea of guilty, and put too much weight on his previous convictions. These number five, since 2000, and are for larceny (2), theft from person, and drunk and disorderly behaviour.

State counsel opposes the appeal, pointing to the much higher tariff of Robbery with Violence, of 4 to 7 years where firearms are not used.

Although this offence was not pre-meditated, it appears to be a very nasty example of gang bullying. Further the victim received injuries as a result of the incident and was fortunate to have received no worse injuries given the sustained nature of the assault. In the circumstances the sentence of 12 months imprisonment, is if anything, lenient. I see no reason to reduce it further.

This appeal is dismissed. The file must now be returned to the Magistrate=s Court so that the question of activating the suspended sentence imposed in November 2001, can be dealt with.

Nazhat Shameem
JUDGE

At Suva
15^th November 2002