Roko v The State [2003] FJHC 75; HAA0008J.2003S (23 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA008 OF 2003S

Between:

MITIELI ROKO
Appellant

And:

THE STATE
Respondent

Hearing: 16th May 2003
Judgment: 23rd May 2003

Counsel: Appellant in Person
Mr N. Lajendra for State

JUDGMENT

The Appellant appeals against his convictions and sentences on the following charges:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

MITIELI ROKO on the 26th day of December, 2002 at Nasinu in the Central Division, robbed ROSIE SHIRI WASTO f/n SAT DEO SHIRI WASTO cash $12.50, one fabric bag valued $8.00, one vodaphone valued $300.00, one wallet valued $25.00, one bottle perfume valued $8.00 and cosmetics valued $10.00 to total value of $363.50, the property of the said ROSIE SHIRI WASTO f/n SAT DEO SHIRI WASTO, and immediately after such robbery did use personal violence.

SECOND COUNT

Statement of Offence

RESISTING ARREST: Contrary to Section 247(b) of the Penal Code, Act 17.

Particulars of Offence

MITIELI ROKO on the 26th day of December 2002, at Nasinu in the Central Division, after being lawfully arrested by Sergeant Ulaiasi Ramaqa resisted the said arrest.

THIRD COUNT

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: Contrary to Section 138 of the Penal Code Act 17.

Particulars of Offence

MITIELI ROKO, on the 28th day of December 2002 at Nasinu in the Central Division, escaped from the lawful custody of PC 2803 Savenaca.

The case was first called on 2nd January 2003. The Appellant pleaded not guilty on Count 1, but pleaded guilty on Counts 2 and 3. He waived his right to legal representation.

The facts were outlined. They were that on 26th December 2002, at 5.15pm, one Sergeant Rawaqa heard the complainant yelling for help at Laucala Beach Estate. He and two others ran after the Appellant and caught him. He was taken to the Valelevu Police Station. He asked to be taken to the Valelevu Health Centre where he escaped from the custody of Police Constable Savenaca. He was re-arrested a few days later during a police raid on his home. The Appellant admitted these facts and was convicted “as charged.” One previous conviction was admitted, for burglary in 2001. The Appellant had been ordered to do 100 hours of community work at the Old People’s Home. In mitigation the Appellant said he was due to attend classes at the Fiji Institute of Technology in 2003 and was the sole breadwinner in his family.

On 13th January 2003 the learned Magistrate proceeded to sentence the Appellant. In error however he sentenced him also for the offence of robbery with violence for which the Appellant had entered a plea of not guilty. Noting that the Appellant had committed the offences whilst on bail for other offences, and that the Appellant had also committed the offence of abduction, he sentenced him to 2 years imprisonment on Count 1, 3 months imprisonment on Count 2 and 3 months imprisonment on Count 3, all to be served consecutive to each other.

State counsel agreed that the sentence on Count 1 could not stand because the Appellant had pleaded not guilty on that count. However he submitted that the sentences on Counts 2 and 3 were right in principle and reflected the nature of the offending.

I agree. The sentence on Count 1 is quashed and the matter remitted to the Magistrate’s Court for trial. On Counts 2 and 3, I see no reason to disturb the sentences. Although I am not aware of any previous conviction for abduction, the Appellant had already been given a non-custodial sentence in 2001 giving him a chance to redeem himself. He abused this opportunity and chose to resist arrest and to escape from the lawful custody of the police. The total sentence of 6 months imprisonment is not excessive. He informs me that he has already served 5 months of this term.

This appeal is allowed in respect of the sentence on Count 1, which is quashed. The matter must be heard in the Magistrates’ Court on a not guilty plea. The appeals in respect of the other two counts are dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd May 2003