Seseu v The State [2003] FJHC 224; HAM0043J.2003S (10 December 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CR. MISC. ACTION NO: HAM0043 OF 2003S

Between:

JOJI SESEU
JOJI MATAIWAI
Applicants

And:

THE STATE
Respondent

Counsel: Applicants in Person
Mr. D. Prasad for Respondent

Hearing: 5th December 2003
Judgment: 10th December 2003

JUDGMENT

This is an appeal against sentence. The Appellants were charged with the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

JOJI SESEU and JOJI MATAIWAI on the 18th day of January 2003 at Suva in the Central Division, robbed Ravin Chand Raman s/o Ramesh Chandra of cash $40.00 and addidas canvas valued at $190.00 the property of Ravin Chand Raman s/o Ramesh Chandra and at the time of such robbery used personal violence to the said Ravin Chand Raman s/o Ramesh Chandra.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

JOJI SESEU and JOJI MATAIWAI on the 18th day of January, 2003 at Suva in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing took to his own use motor vehicle registered number CI549 the property of Ravin Chand Raman s/o Ramesh Chandra.

The case was first called in the Suva Magistrates’ Court on 20th January 2003. No plea was taken because the Appellants wanted to obtain legal advice. They were remanded in custody but were eventually granted bail on 17th February 2003. They did not instruct counsel, and the pleas were eventually taken on the 5th of June 2003.

The facts were outlined. They were that on the 18th of January 2003 at Suva, the 1st and 2nd Appellant hired a carrier, driven by the complainant to Narayan Jetty. On the way to the jetty one of the Appellants asked the complainant to stop the vehicle and the other began to punch him. He was pulled to the back seat and forced to lie on the floor of the carrier. The 1st and 2nd Appellant punched him on his face and body. They took his clothes off and his shoes.

A tendered medical report shows that the complainant received 4 bruises around the head and face and one lacerated wound on his left knee, which required stitching.

An accomplice of the two Appellants then drove the vehicle to the junction of Rewa Street and Nailuva Road where it was involved in an accident. The Appellants were arrested and admitted committing the offence. These facts were admitted. Both Appellants were first offenders.

In mitigation the Appellants said that they were only 18 and 19 years old respectively and they promised they would not re-offend. In his sentencing remarks the learned Magistrate took into account the Appellants’ good character, expressed remorse, and their social and economic background. However he found that an immediate custodial sentence was inevitable on the facts of the case, and he sentenced both Appellants to 12 months imprisonment on Count 1, and 3 months imprisonment on Count 2 to be served concurrently.

The Appellants filed this appeal out of time, but leave was granted to do so by the learned Magistrate.

The grounds of appeal are that the sentence in total was harsh and excessive and that they should have been given a non-custodial sentence such as a Community Work Order. In court both expressed remorse, saying that they would not re-offend again.

State counsel opposed the appeal and invited the court to enhance the sentences. He requested leave to file a cross-appeal. I gave him time to file an application for leave to appeal out of time, but he informed the court on 24/11/03 that having considered the matter further he would not be filing a cross-appeal. I have therefore proceeded to judgment.

There is no doubt at all that this was a bad case of robbery with violence, leading to serious injuries. Although the value of the stolen items totalled only $230, the Appellants were clearly willing to use gratuitous violence to benefit from the robbery. The courts have repeatedly said that they have a duty to protect public service vehicle drivers from assault and robbery because of their especially vulnerable position when driving at night or in isolated areas. In this case not only was the driver assaulted around the head and body, he was subjected to further humiliation by having his clothes removed. Clearly a deterrent sentence was called for.

The tariff for robbery with violence is 4-7 years. In this case, because of the level of violence used, 6 years imprisonment would have been an appropriate starting point. The undressing of the driver, the injuries and the fact that the offence was committed by a group of men would have led to an increase of 2 years, to 8 years imprisonment. After substantial reduction for good character, youth, secondary participation (according to the Appellants’ claims in the Magistrates’ Court) and the guilty plea, a sentence of 4 years imprisonment on Count 1 might have been considered an appropriate sentence.

In these circumstances the Appellants were fortunate indeed to receive only 12 months imprisonment on Count 1. I can only conclude that the learned Magistrate decided that great weight should be put on the fact that the Appellants were of good character and were very young.

For these reasons there is clearly no substance in this appeal. The Appellants have obviously not learnt that all human life is precious, and that all persons deserve to be treated with dignity and respect. In their submissions to me, they made no mention of any attempt at apology to the complainant or at reconciliation or reparation.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
10th December 2003