Marawa v The State [2002] FJHC 182; HAA0089J.2002S (15 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0089 OF 2002S

Between:

LEONE MARAWA
Appellant

And:

THE STATE
Respondent

Hearing: 8^th November 2002

Judgment: 15^th November 2002

Counsel: Appellant in Person
Mr N. Lajendra for State

JUDGMENT

The Appellant appeals against a sentence of 2 years imprisonment imposed on him by the Suva Magistrate=s Court on the 29^th of July 2002. He was sentenced, on conviction for the following offence:

Statement of Offence

ATTEMPTED ROBBERY: Contrary to Sections 381 and 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

LEONE MARAWA, on the 20^th day of July, 2002 at Suva in the Central Division, attempted to rob William King, at the time and immediately before such robbery, used personal violence to the said William King.

The facts, which the Appellant admitted were that on the 20^th of July 2002 at 9.30am, the complainant was walking to the Suva bus stand when the Appellant accosted him on the street. He pulled him along the street and tried to put his hands in the complainant=s pockets. The complainant managed to struggle free and reported the matter to the police. The Appellant was identified by the complainant, and he was arrested and charged.

The court record states that 2 previous convictions were admitted. There is a total of 21 in the list of previous convictions submitted by the prosecution. However having checked the original court file, I find that the Magistrate wrote A21" in his record. The reference to A2" in the typed record is therefore a typing error.

The learned Magistrate then sentenced the Appellant saying he had considered the plea of guilty, the mitigation and the previous convictions. The Appellant=s grounds of appeal are:

1. Not enough weight was given to the guilty plea;
   
2. That the learned Magistrate failed to evaluate the evidence;
   
3. The sentence was harsh and excessive;
   
4. The complainant was not injured.
   

At the hearing of this appeal the Appellant pursued his appeal against sentence alone. He was right to abandon his appeal against conviction. His plea was clearly unequivocal, and the facts more than adequately disclosed the offence.

As to sentence, the tariff for Attempted Robbery is lower than that for Robbery. According to the schedule to the Criminal Procedure Code, any attempt to commit any crime (whether felony or misdemeanour) is a misdemeanour and the maximum sentence which can be imposed is two years imprisonment. The tariff for any offence is usually a period ending well below the statutory maximum.

In this case the Appellant received the statutory maximum term of imprisonment. Despite his unimpressive list of previous convictions, and his cavalier treatment of the victim, the sentence of two years was wrong in principle. The starting point ought to have been one year, with a deduction for the guilty plea of three months. The violent way in which he treated the victim should have led to an increase of 3 months, leaving the Appellant with a final sentence of 1 year imprisonment. He was entitled to no further leniency because of his previous convictions.

The two year term must therefore be quashed and the sentence reduced to a total of one year imprisonment to run from the day he was first sentenced in the Magistrate=s Court. The appeal succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
15^th November 2002