Raiwalui v The State [2003] FJHC 157; HAA0030J.2003S (12 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0030 OF 2003S

Between:

PENI RAIWALUI
Appellant

And:

THE STATE
Respondent

Hearing: 7th November 2003
Judgment: 12th November 2003

Counsel: Appellant in Person
Mr. S. Leweniqila for Respondent

JUDGMENT

The Appellant was sentenced to a total of 5 years imprisonment in respect of the following charges:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

PENI RAIWALUI with others, on the 12th day of April, 2003 at Samabula in the Central Division, robbed KISSUN LAL s/o NAND LAL of his wrist watch valued $60.00 and immediately before such robbery threatened to use personal violence on the said KISSUN LAL s/o NAND LAL.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

PENI RAIWALU with others, on the 12th day of April, 2003 at Samabula in the Central Division, robbed DIPAK NARAYAN s/o SATISH NARAYAN of Bondwell Computers of cash of $529.93, 5 cheque leaf amounting to $1,960.95, 4 headphone valued $36.00 and a CD case valued $36.00 to the total value of $2,561.88, and immediately before such robbery threatened to use personal violence on the said DIPAK NARAYAN s/o SATISH NARAYAN.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

PENI RAIWALUI with others, on the 12th day of April, 2003 at Samabula in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing, took to their own use, motor vehicle registration number DU324 the property of KISSUN LAL s/o NAND LAL.

FOURTH COUNT

Statement of Offence

LARCENY: Contrary to Sections 259(1) and 262(1) of the Penal Code, Act 17.

Particulars of Offence

PENI RAIWALUI with others, on the 12th day of April 2003 at Samabula in the Central Division, stole a taxi meter valued $300.00, one car stereo valued $600.00 and a roof taxi sign valued $100.00 to the total value of $1,000.00 the property of KISSUN LAL s/o NAND LAL.

On the 17th of April 2003 the Appellant waived his right to legal representation and pleaded guilty to all four counts. The facts were that on 12th April 2003, one of the Appellant’s accomplices hired a taxi driven by Kissun Lal at Grantham Road. The driver was directed to drive to Wailoku. On the way, the accomplice directed the driver to stop. The Appellant and two others got into the taxi and they put the driver in the back seat. They then drove to the Savura pumping station, where they took the driver out, tore his shirt, tied his hands to a tree and drove off to Bondwell Computers Ltd. at Moti Street. There the Appellant with two others entered the shop armed with a cane knife, screwdrivers and timber. They stole the items specified in the charge and escaped in the same taxi. They abandoned the taxi at Wailea Street, Vatuwaqa and took its taxi meter, taxi sign and radio. They then fled. The Appellant and another person were arrested on 14th April 2003 whilst they were trying to cash one of the stolen cheques. The Appellant admitted all the offences when interviewed. Only the cheque to the value of $1164.64 was recovered.

The Appellant admitted these facts. He was a first offender.

In mitigation he said that he was 19 years old, had been influenced by others, was a student at the Fiji Institute of Technology and only realised what the others had planned to do, at Savura. He said his parents were old and he had just been offered a job.

The learned Magistrate chose a starting point of 5 years imprisonment. He reduced the sentence by 2 years to reflect his youth and good character. He then scaled the sentence up by 2 years to reflect the planning, the offending as a group, the use of weapons and the value of the stolen goods. He also took into account the tying up of the taxi driver. The learned Magistrate then sentenced the Appellant as follows:

Count 1 – 3 years imprisonment

Count 2 – 5 years imprisonment

Count 3 – 18 months imprisonment

Count 4 – 18 months imprisonment

All sentences were ordered to be served concurrently with each other.

The Appellant appealed against both conviction and sentence. His grounds were that he was tricked by the others to take part in the robbery, that he had been forced to plead guilty, that he had not been given enough time to prepare his mitigation, that he was a first offender and a final year student at the FIT, and that his sentence was harsh and excessive.

In court however he proceeded with his appeal against sentence only. He was right to do so. There is no suggestion of an equivocal plea on the record. The Appellant waived his right to counsel, and he is not an uneducated rural dweller who might have misunderstood the nature of the plea. Further, the facts disclose all the offences and the Appellant agreed to them. In mitigation he said he had been influenced by the others to commit the offences. He did not say that he had been forced to commit the offences.

In respect of sentence, the tariff for robbery with violence in Fiji is 4 to 7 years. Although no injuries were inflicted on the taxi-driver, the acts of tying him up and leaving him in an isolated area are very serious. A starting point of 5 years imprisonment is appropriate. The Appellant was entitled to substantial discount for his youth and good character. I consider that a 2 year discount for those factors and for the guilty plea, is not wrong in principle. The manner in which the robbery was committed was serious and a custodial sentence was called for. A 3 year sentence is not wrong in principle, nor is it harsh and excessive.

On Count 2, the use of weapons, the value of the stolen items and the committing of robbery in a group, all called for a higher sentence. The facts do not disclose whether the person specified in the charge, Dipak Narayan was the only person present in the shop. However the offence was committed in broad daylight and the 5 year term reflected the seriousness of the offence.

On Counts 3 and 4, the 18 month term is correct in principle on Count 4. However 18 months imprisonment is well beyond the statutory maximum sentence of 6 months imprisonment under section 292 of the Penal Code. The sentence on Count 3 is reduced to 4 months imprisonment.

The Appellant was fortunate to be ordered to serve all the terms concurrently. A total 5 years imprisonment for two offences of robbery with violence, and one of larceny is hardly harsh and excessive.

Result

The sentences on Counts 1, 2 and 4 remain. The sentence on Count 3 is quashed and substituted with a term of 4 months imprisonment to be served concurrently with the other counts. The Appeal succeeds to that extent.

Nazhat Shameem
JUDGE

At Suva
12th November 2003