Dakai v The State [2003] FJHC 152; HAA0048J.2003S (24 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0048 OF 2003S

Between:

LASARUSA DAKAI
Appellant

And:

THE STATE
Respondent

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

Hearing: 17th October 2003
Judgment: 24th October 2003

JUDGMENT

The Appellant was convicted on the following charge, in the Suva Magistrates’ Court on the 9th of June 2003:

Statement of Offence

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

Particulars of Offence

LASARUSA DAKAI, with two others on the 1st day of June, 2003 at Nasinu in the Central Division, being armed with offensive weapon, robbed SHALENDRA KUMAR JEET f/n Bramha Jeet, of one cannon digital camera valued $1000.00, five ladies wrist watch valued $490.00, one gent’s wrist watch valued $60.00, three piece ladies ring valued $500.00, one pair 22ct bangles valued $400.00, one ladies purse valued $7.00, one gent’s wallet valued $20.00, and cash $35.00, to the total value of $2,512.00, the properties of the said SHALENDRA KUMAR JEET f/n Bramha Jeet.

He pleaded guilty to the charge. The facts were that on the 1st of June 2003, the complainant, a schoolteacher was at home when the Appellant, accompanied by two others, broke into the front door and entered the house. They threatened the complainant with a kitchen knife and demanded cash. They then ransacked the house and stole all the items listed in the charge, to the total value of $2,512.00. The matter was reported to the police. The Appellant was arrested. A pair of the stolen bangles was found in his possession.

These facts were admitted, together with three previous convictions for house-breaking, entering and larceny, larceny from person and rape. He received suspended sentences for all the previous offences.

In mitigation, the Appellant said that he was 35 years old and married with three children. He worked as a casual labourer at a bakery. He expressed remorse and asked to be sent to his village.

The learned Magistrate fixed his starting point at 3 years imprisonment and reduced that by 1 year and 6 months for the guilty plea “and for keeping out of trouble” since his last conviction in 1996. He increased the sentence by 6 months to reflect the non-recovery of the stolen items. He sentenced the Appellant to 2 years imprisonment.

The Appellant says that this sentence is harsh and excessive because he was not the principal offender and because he had been assaulted by the police in the course of investigations. He asks for a reduction of his sentence.

State counsel said that the learned Magistrate ought to have started within the tariff of 4 to 7 years imprisonment (State –v- Ilaisa Sousou Cava HAC0007.2000S) and that the sentence of 2 years imprisonment was well below the tariff for robbery with violence. He said that the appeal should be dismissed.

This is a case of robbery with violence, and where the violence includes the use of or threat by a weapon other than a firearm, the courts must pick a starting point from within the tariff. The starting point is chosen on the basis of the seriousness of the offending. A group offence of robbery with violence will normally lead to a starting point at the higher end of the tariff. In this case the starting point should have been 6 years imprisonment. After reduction for the guilty plea and scaling-up for the aggravating factors, in particular the use of the knife and the value of the items stolen, a sentence of 5 years imprisonment would have been appropriate. A sentence of 2 years imprisonment is therefore considerably lighter than the Appellant might have expected.

Robbery with violence is a very serious offence. When it is committed in the home of the victim, a place normally considered to be a place of sanctuary and safety by all citizens, offenders must expect an appropriately deterrent sentence. If the Director of Public Prosecutions had appealed against leniency of sentence in this case, he would have succeeded.

The Appellant’s appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
24th October 2003