Koroivuata v The State [2004] FJHC 139; HAA0064.2004 (20 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0064 OF 2004

BETWEEN:

VILIKESA KOROIVUATA
Appellant

AND:

STATE
Respondent

Date of Hearing: 18th August, 2004
Date of Judgment: 20th August, 2004

Counsel: Appellant – In Person
Ms P. Madanavosa - for the State

APPEAL JUDGMENT

Introduction

The appellant was convicted of one charge of robbery with violence and one charge of unlawful use of a motor vehicle by the Magistrates Court at Suva and sentenced on the 24th of October, 2003 to an effective term of 2 years imprisonment. He appeals against sentence.

Particulars of the Offence

On the morning of the 18th of September the accused and 3 others had planned a robbery. They needed a getaway vehicle. This appellant, the youngest of the group, was despatched to flag down a taxi. He did so and he gave the victim of this crime instructions to drive to Orchid Island near Lami.

The taxi driver was then directed into old Veisari Road. As the taxi approached the bridge the appellant’s accomplices suddenly appeared at a road blockade they had erected. The men were all masked. The group pulled the taxi driver out of the van, bound his hands, legs, mouth and eyes with masking tape and left the victim in the rear of the van. The robbers drove away. Fortunately the taxi driver broke loose of his bonds and made off. Two days later while making enquiries at the Police Station the victim recognized one of the robbers, told the police about it and as a result this appellant was caught and caution interviewed. He admitted the offending.

The Appeal

At his first appearance the appellant was advised of his constitutional rights and his ability to make an application for legal aid. At his appeal he appeared unrepresented. In accordance with my earlier directions he had however filed a lengthy hand written letter telling me about his appeal case.

He first questioned as to whether his plea was unequivocal. He claimed he was not given his right to a solicitor. He then raised several points concerning a submission that the sentence was harsh and excessive. They are:

• A failure by the learned Magistrate to consider that he was the first offender.
  
• A failure by the learned Magistrate to take into account that he was young.
  
• A failure by the learned Magistrate to take into account that he was much younger than his co-accused.
  
• A complaint that the sentence imposed was disproportionate to the offence.
  
• New mitigation primarily that he has mended his ways. His family relies on him for income and that he now wants to lead a discipline moral life.
  

He pleads that the Court should impose a suspended sentence or a long period of community work.

The State replied in writing. It was submitted that the accused’s plea was unequivocal. That he had been given rights to counsel. That the sentence was not harsh or excessive.

Decision

Violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. Taxi drivers are particularly exposed to the risk of robbery. They are defenceless victims. The risk of personal harm they take everyday by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver they will receive a lengthy term of imprisonment.

In Australia the maximum penalty for violent robbery is less then Fiji. Despite this the Queensland Court of Appeal observed in R v Bowen & Ambrym [1998] QCA 394 (Pincus JA):

“A schedule showing comparable sentences for ‘robbery of a taxi driver’ was placed before the court; a reading of that shows that the degree of violence used and extent of injury, if any, caused to the victim is a critical factor to be taken into account. The sentences generally ranged from 4 years imprisonment with recommendation for parole after 12 months to 8 years imprisonment.”

I find that this appellant’s plea was properly accepted. The charge was read and explained to him and he indicated that he understood it. There was nothing complicated about the summary of facts or the detail of the offending. He chose to take part in a carefully planned and pre-meditated act of violent thuggery. He equally chose to admit his offending at interview. There is nothing in his claim to a lack of representation. This was offered but declined (page 3 record). He remained on bail prior to sentencing. He could have easily made arrangements for counsel but did no do so.

The sentencing decision was brief but considered. The learned Magistrate correctly noted that a custodial sentence was called for and one not only involving punishment of the appellant but also deterrence of others. An appropriate discount was given for an early guilty plea, previous good record and young age.

I cannot say that the sentence imposed was harsh and excessive. If anything the sentence was lenient. The appellant pleads he is a young first offender and that his sentence should be suspended. He is wrong. This was violent offending. It will only be in rare and exceptional circumstances that the Court may be required to consider a suspended term of imprisonment for violent offending. The public need for deterrence will often outweigh the personal needs of a young but violent first offender.

Conclusion

Appeal dismissed.

Gerard Winter
JUDGE

At Suva
20th August, 2004