Vakabogi v The State [2003] FJHC 118; HAA0020J.2003S (4 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0020 OF 2003S

Between:

DEI VAKABOGI
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. D. Prasad for State

Hearing: 13th June 2003
Judgment: 4th July 2003

JUDGMENT

The Appellant appeals against his total sentence of 4 years imprisonment in respect of 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

DEI VAKABOGI and two others, on the 4th day of March, 2003 at Nasinu in the Central Division robbed DHARMA WATI d/o Gobar Dhan of a hand bag valued at $30.00, a reading glass valued at $400.00 and cash of $80.00 to the total value of $510.00 and immediately before such robbery did use personal violence to the said DHARMA WATI d/o Gobar Dhan.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code, Act 17.

Particulars of Offence

DEI VAKABOGI and two others, on the 14th day of March, 2003 at Nasinu in the Central Division, unlawfully and without colour of right, but not so as to be guilty of stealing, took a motor vehicle registration number DB 138 for his own use, the property of DHARMA WATI d/o Gobar Dhan.

The Appellant waived his right to counsel in the Magistrates’ Court and pleaded guilty to both charges. The facts outlined were that the complainant was a school teacher at the Rishikul Primary School. On 14th March 2003, she drove her private car to the school car park and locked it. She went to the Staff Room. When she returned to her car and opened the door, the Appellant with others pushed her away, assaulted her and took her car keys. They then drove away with the car despite efforts made by the other teachers to prevent them from leaving the school compound. The Appellant was later interviewed under caution. He admitted the offences and was charged.

The medical report of the complainant was tendered, and is placed in the court file although it is not on the court record. The injuries found on the complainant included dental injury resulting in the loss of a tooth, bruises on the elbow and jaw and injury to the back. The doctor recorded that the complainant was not able to walk as a result of her injuries.

These facts were admitted by the Appellant. He admitted 9 previous convictions three of which are for larceny.

In mitigation the Appellant asked for leniency. Sentence was delivered on the 4th of April 2003. The learned Magistrate took into account the Appellant’s age (20) and his plea of guilty. He noted the aggravating features of the case and started at 5 years imprisonment. Taking into account mitigating and aggravating circumstances he arrived at a sentence of 4 years imprisonment on Count 1, and 12 months imprisonment on Count 2 to be served concurrently to the sentence on Count 1.

The Appellant in written and oral submissions said that this sentence was harsh and wrong in principle. He said that he had only pushed the complainant who had been able to walk after the incident. He said that they had tied her up and taken her key.

State counsel opposed the appeal saying that the Appellant had received a lenient sentence given the circumstances of the case. He referred to the range of sentences for robbery with violence in Fiji, from 4 to 7 years.

The Appellant in this case took part in a criminal enterprise which was planned, and executed by a group of men. In the course of the robbery, the complainant was injured either by assault or by violent pushing. The incident occurred in broad daylight in a school compound. Other than the plea of guilty, there were no real mitigating factors. In all the circumstances I consider that the sentence imposed was right in principle and not manifestly excessive. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
4th July 2003