Bulinaivalu v The State [2004] FJHC 133; HAA0062J.2004 (13 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0062 OF 2004S

Between:

TEVITA BULINAIVALU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Ms L. Chandra for State

Hearing: 6th August 2004
Judgment: 13th August 2004

JUDGMENT

The Appellant is a 19 year old first offender who appeals against a sentence imposed on him, of 3 years imprisonment for the offence of robbery with violence. His charge was as follows:

Statement of Offence

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

Particulars of Offence

TEVITA BULINAIVALU, on the 25th day of March, 2004 at Nakelo, Nausori in the Central Division, robbed SHIRI RAM s/o RANGAIYA of cash $15.00 and ignition keys valued at $10.00 of taxi registration number LT2263 to the total value of $25.00, and immediately before such robbery did use personal violence on the said SHIRI RAM s/o RANGAIYA.

The Appellant pleaded guilty on the 26th of March 2004. The facts were that the complainant was a 77 year old taxi proprietor, operating in Nausori town. The accused approached him at his taxi stand and asked to hire a taxi to Manoca. At Nakelo Landing, the accused told the complainant to stop, and pulled out the car keys. He slapped the complainant and grabbed $15.00 from his shirt pocket. He then fled the scene. The complainant was taken to the hospital and the accused was arrested and charged. Under caution he admitted the offence. The taxi keys and the $15 cash were found in the Appellant’s possession. The complainant sustained no injuries.

The Appellant admitted these facts and he was convicted. The learned Magistrate said that although the offence was serious, there were no serious injuries sustained, no use of weapons and no premeditation or gang violence. The Appellant is a 20 year old villager (in fact he is 19 years old) and pleaded guilty. He took into account the Appellant’s father’s plea for leniency and the fact that the Appellant wished to join the army or navy. He sentenced the Appellant to 30 days community work at Vuci Police Post under the supervision of the Officer in Charge.

On the 20th of August 2004, the Appellant was brought back to court. He had breached his community work order. The Appellant said he had failed to comply because of illness. The learned Magistrate clearly did not believe him. He said-: “From the outset, this Court bent backwards to pass a lenient sentence in the hope, accused will reciprocate. Regrettably, accused’s disobedience demonstrates his stubborn and disrespectful attitude. This court has no other option but to now pass a stern sentence. Maybe this Court badly judged the accused’s character and even his father’s plea. Accused does not deserve any more mercy. Accordingly, accused is sentenced to 3 years imprisonment.”

I agree with the learned Magistrate’s assessment that his trust in him was misplaced. The Appellant told the Magistrate that he had failed to comply with the community work order because he had been ill. In his petition of appeal to the High Court, he said he had failed to comply because he was too busy fishing to earn money for his family. Evidently, his priorities were not on staying out of prison and obeying the court’s orders.

In the circumstances I agree that the community work order, was properly rescinded and substituted with a custodial sentence. However I do not consider the three year term to have adequately taken into account his youth, his guilty plea, the lack of premeditation and weapons and the minimal violence used. Further the scale of the robbery itself justified a starting point of no higher than 4 years imprisonment. With the age of the complainant being the only real aggravating factor, and the Appellant’s youth, plea of guilty, remorse, good character and simple village background, the sentence should have been reduced to 18 months. The 3 year sentence was arrived at after no consideration of these factors. It is manifestly excessive and I quash it accordingly. I substitute it with a sentence of 18 months imprisonment to run from the 20th of April 2004.

The appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
13th August 2004